quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
For the Defendant: A first conviction <strong>for</strong> giving away a small amount of marijuana <strong>for</strong> free<br />
should not be considered an aggravated felony, because it is treated as a misdemeanor under<br />
federal law. Lopez v. Gonzalez, 127 S. Ct. 625 (2006) (a non-trafficking state offense that is the<br />
analogue of a federal misdemeanor is not an aggravated felony). Because the offense explicitly<br />
is eligible <strong>for</strong> relief under the Federal First Offender Act, it receives the benefit of Lujan-<br />
Armendariz so that withdrawal of plea under rehabilitative relief of a first drug offense will<br />
eliminate the conviction <strong>for</strong> <strong>immigration</strong> purposes. See 21 USC § 841(b)(4), providing that this<br />
offense is punishable as a misdemeanor under federal law (see 21 USC § 844), <strong>and</strong> that it is<br />
amenable to treatment under the Federal First Offender Act, 18 USC § 3607.<br />
Warning on giving away a small amount of marijuana. Counsel must document the “small<br />
amount.” The government is likely to charge this conviction as aggravated felony. Compare<br />
Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (there the defender did not document the “small,”<br />
but this probably would not have been enough <strong>for</strong> the Board) with Jeune v. Att’y Gen. of U.S.,<br />
476 F.3d 199, 205 (3d Cir. 2007). To avoid an aggravated felony, plead to simple possession,<br />
transportation, or offering to give away a small amount of marijuana <strong>for</strong> free.<br />
For the Defendant: A first conviction, felony or misdemeanor, <strong>for</strong> simple possession is not a<br />
drug trafficking aggravated felony. Lopez v. Gonzalez, 127 S. Ct. 625 (2006).<br />
Warning on first possession: The only exception is that possession of flunitrazepam or<br />
more than five grams of crack cocaine will be charged as aggravated felonies, because these are<br />
punishable as felonies under federal law.<br />
For the Defendant: Absent circuit law to the contrary (which does not exist in the Ninth<br />
Circuit), a plea to simple possession where there is a prior drug conviction is not an aggravated<br />
felony, unless the prior conviction was pleaded or proved at the subsequent possession<br />
prosecution. Matter of Carachuri, 24 I&N 382 (BIA 2007). The Supreme Court is considering<br />
the issue, but Matter of Carachuri remains in effect.<br />
Note on possession with a prior: Because the case is pending be<strong>for</strong>e the Supreme Court, try<br />
to avoid pleading to simple possession where there is a drug prior, <strong>and</strong> instead plead to under the<br />
influence, possession of paraphernalia, or another non-trafficking offense with no federal<br />
analogue. If you must plead to possession, be sure to avoid having the prior conviction pleaded<br />
or proved at the possession case.<br />
Immigrant Legal Resource Center N-139