quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 The BIA and Court noted that the Supreme Court construed the “catch-all” provision in 18 USC § 1503(a) to require that the defendant specifically intended to impede an ongoing judicial or grand jury proceedings. 217 Thus, to avoid conviction of obstruction of justice, counsel should plead to conduct that did not impede an ongoing judicial proceeding (or if that is not possible, to leave the record vague). An example is a plea to interference with arrest or other process that occurs before charges are brought in criminal court or a grand jury. A plea to conduct that does not show specific intent to impede the tribunal is sufficient. Unfortunately, before the Board adopted this definition, it held with almost no analysis that federal accessory after the fact (18 USC § 3) is obstruction of justice and therefore is an aggravated felony if a sentence of a year or more is imposed. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997). ICE will likely charge P.C. § 32 as obstruction of justice. ICE conceivably also would charge that P.C. § 136.1(b), which includes non-violently trying to persuade someone not to file a police report, is categorically an obstruction of justice offense. In fact, both §§ 32 and 136.1(b) reach conduct that takes place before judicial proceedings have begun, and thus both are at least divisible as obstruction of justice offenses. H. Moral Turpitude and Matter of Silva-Trevino: Defense Strategies For the Defendant. An immigration judge may go beyond the reviewable record of conviction to determine whether an offense causes inadmissibility as a crime involving moral turpitude, but only after finding that the categorical and modified categorical approaches fail to answer this question. “In my view, when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure proper application of the Act's moral turpitude provisions… In short, to determine whether an alien's prior conviction triggers application of the Act's moral turpitude provisions, adjudicators should: (1) look first to the statute of conviction under the categorical inquiry …. (2) if the categorical inquiry does not resolve the question, look to the alien's record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question. Matter of Silva-Trevino, 24 I&N Dec. 687, 699, 704 (AG 2008) (emphasis supplied). Where the reviewable record establishes that the plea is specifically to conduct that does not involve moral turpitude, the inquiry stops. Matter of Silva-Trevino has caused great uncertainty because in some instances it permits an immigration judge to go beyond the reviewable record permitted under the modified categorical approach, and into a broad inquiry about the facts of the case to see if a conviction involved conduct that “involves moral turpitude.” Immigration judges sometimes forget that Silva- 217 Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999) (misprision of felony is not obstruction of justice), citing United States v. Aguilar, 115 S.Ct. 2357, 515 U.S. 593, 598-99 (1995). Immigrant Legal Resource Center N-141
California Quick Reference Chart and Notes February 2010 Trevino permits this only if the statute is divisible, and if the reviewable record of conviction does not establish whether the offense involves moral turpitude. To attempt to protect the defendant from a broad inquiry, criminal defense counsel should plead specifically to conduct under the statute that does not involve moral turpitude, and put this in the reviewable record of conviction. For example, counsel should arrange a guilty plea to a temporary taking under Veh. Code § 10851, or a mere offensive touching under P.C. § 243(e). See discussion of crimes involving moral turpitude in Note 7, supra. Give the above summary to the defendant if you were successful in creating a specific record of a plea to an offense that does not involve moral turpitude, under a divisible statute. See discussion of offenses in the Chart and Notes to see what conduct that is covered by various offenses does not involve moral turpitude. As the below box states, even if an immigration judge may go beyond the record of conviction to determine if the offense of conviction is a crime involving moral turpitude, they may not do this to determine if it comes within other immigration provisions, e.g. is a deportable conviction of a firearms offense, a controlled substance offense. For the Defendant: Silva-Trevino applies only to the moral turpitude grounds and does not permit an inquiry beyond the categorical approach to determine whether an offense comes within any other ground of inadmissibility or deportability. “This opinion does not, of course, extend beyond the moral turpitude issue--an issue that justifies a departure from the Taylor/Shepard framework because moral turpitude is a non-element aggravating factor that ‘stands apart from the elements of the [underlying criminal] offense.’” Matter of Silva-Trevino, 24 I&N Dec. 687, 699, 704 (AG 2008). I. Find a Disposition That Is Not a Conviction Most, although not all, immigration consequences can be avoided if the offense is not a “conviction.” See discussion in § N.3, supra. For the Defendant: The following is not a “conviction” for immigration purposes in proceedings arising in the Ninth Circuit. A first conviction for simple possession (felony or misdemeanor) that is eliminated under rehabilitative provisions such as Deferred Entry of Judgment, Prop 36, or PC § 1203.4 is eliminated for all immigration purposes. Lujan-Armendariz v. INS, 222 F.3d 728 (9 th Cir. 2000). This also works if the first conviction is for an offense less serious than simple possession that does not have a federal analogue, such as possessing paraphernalia or under the influence (Cardenas-Uriarte v. INS, 227 F.3d 1132 (9 th Cir. 2000), Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009) (Calif. H&S C § 11364(a)) and should work for a first conviction for giving away a small amount of marijuana for free (see 21 USC § 841(b)(4)). N-142 Immigrant Legal Resource Center
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