quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 For the Defendant: A first conviction for giving away a small amount of marijuana for free should not be considered an aggravated felony, because it is treated as a misdemeanor under federal law. Lopez v. Gonzalez, 127 S. Ct. 625 (2006) (a non-trafficking state offense that is the analogue of a federal misdemeanor is not an aggravated felony). Because the offense explicitly is eligible for relief under the Federal First Offender Act, it receives the benefit of Lujan- Armendariz so that withdrawal of plea under rehabilitative relief of a first drug offense will eliminate the conviction for immigration purposes. See 21 USC § 841(b)(4), providing that this offense is punishable as a misdemeanor under federal law (see 21 USC § 844), and that it is amenable to treatment under the Federal First Offender Act, 18 USC § 3607. Warning on giving away a small amount of marijuana. Counsel must document the “small amount.” The government is likely to charge this conviction as aggravated felony. Compare Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (there the defender did not document the “small,” but this probably would not have been enough for the Board) with Jeune v. Att’y Gen. of U.S., 476 F.3d 199, 205 (3d Cir. 2007). To avoid an aggravated felony, plead to simple possession, transportation, or offering to give away a small amount of marijuana for free. For the Defendant: A first conviction, felony or misdemeanor, for simple possession is not a drug trafficking aggravated felony. Lopez v. Gonzalez, 127 S. Ct. 625 (2006). Warning on first possession: The only exception is that possession of flunitrazepam or more than five grams of crack cocaine will be charged as aggravated felonies, because these are punishable as felonies under federal law. For the Defendant: Absent circuit law to the contrary (which does not exist in the Ninth Circuit), a plea to simple possession where there is a prior drug conviction is not an aggravated felony, unless the prior conviction was pleaded or proved at the subsequent possession prosecution. Matter of Carachuri, 24 I&N 382 (BIA 2007). The Supreme Court is considering the issue, but Matter of Carachuri remains in effect. Note on possession with a prior: Because the case is pending before the Supreme Court, try to avoid pleading to simple possession where there is a drug prior, and instead plead to under the influence, possession of paraphernalia, or another non-trafficking offense with no federal analogue. If you must plead to possession, be sure to avoid having the prior conviction pleaded or proved at the possession case. Immigrant Legal Resource Center N-139
California Quick Reference Chart and Notes February 2010 Be aware of conduct-based immigration consequences. See Note 7, supra, for a description of the grounds of deportability and inadmissibility that may apply even absent a drug conviction. If there is evidence that the defendant is or has been a drug addict or abuser, or has ever been or aided a drug trafficker, immigration penalties may attach even if there is no conviction or one that is not an aggravated felony. Admission of addiction at a CRC disposition or in “drug court,” or conviction of “offering to sell,” may bring designation as an addict, abuser or trafficker. G. Safer Pleas Relating to Obstruction of Justice or Interference with Law Enforcement (Defenses Where a Sentence of a Year or More is Imposed for Conviction of P.C. §§ 32 or 136.1(b)) An “offense relating to obstruction of justice” is an aggravated felony if a sentence of a year is imposed. 8 USC § 1101(a)(43)(S). A clear-cut defense strategy, therefore, is to avoid imposition of a sentence of a year or more for any single count where the offense might be charged as obstruction of justice. See § N.4 Sentence Solutions. However, if it is not possible to avoid a year’s sentence for P.C. §§ 32 or 136.1(b), the following section discusses why they should be held divisible for obstruction of justice purposes and how to plead. For the Defendant. An offense does not constitute the aggravated felony “obstruction of justice” unless it matches an offense described in 18 USC §§ 1501-1508, or comes within the catch-all provision in 18 USC § 1503(a) which requires specific intent to impede an ongoing judicial proceeding. Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999); United States v. Aguilar, 115 S.Ct. 2357, 515 U.S. 593, 598-99 (1995). Conduct that impedes an arrest or the filing of a police report before judicial proceedings start is not “obstruction of justice.” Salazar-Luviano v. Mukasey, 551 F.3d 857 (9 th Cir. 2008) (aiding escape from custody under 18 USC § 751 is not categorically “obstruction of justice” because the petitioner’s conviction did not come within 18 USC § 1503(a) where the record of conviction failed to show that judicial proceedings had been initiated against the escapees). Calif. P.C. § 32 is not categorically an obstruction of justice offense because by its terms it includes impeding the arrest of a suspect who is not yet the subject of a judicial proceeding. See also United States v. Vidal, 504 F.3d 1072, 1087 (9 th Cir. 2007)(en banc), holding that Calif. Veh. Code §10851 is a divisible statute as an aggravated felony because it includes the offense of accessory after the fact, which is not an aggravated felony. Calif. P.C. § 136.1(b) is not categorically obstruction of justice because by its terms it includes non-violently attempting to persuade a person not to file a police report, before any judicial proceeding has begun. For further discussion and boxes, see Part A for P.C. § 32 and Part B for P.C. § 137.1(b). Warning on P.C. § 32. The Board of Immigration Appeals and the Ninth Circuit have adopted a definition of obstruction of justice that tracks federal statutes, 18 USC §§ 1501-1508. N-140 Immigrant Legal Resource Center
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