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 />
Adjudication in juvenile delinquency proceedings does not constitute a conviction, regardless of<br />
the nature of the offense. Matter of Devison, 22 I&N Dec. 1362 (BIA 2000).<br />
An infraction is not a conviction where it is h<strong>and</strong>led in non-conventional criminal proceedings<br />
that do not require the usual constitutional protections of a criminal trial, such as access to<br />
counsel, right to jury trial, etc. Matter of Eslamizar, 23 I&N Dec. 684, 687-88 (BIA 2004).<br />
A conviction currently on direct appeal of right does not have sufficient finality to constitute a<br />
“conviction” <strong>for</strong> any <strong>immigration</strong> purpose. Pino v. L<strong>and</strong>on, 349 U.S. 901, 75 S.Ct. 576 (1955);<br />
see also discussion in Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009) <strong>and</strong> Practice<br />
Advisory by Manuel Vargas, “Conviction Finality Requirement: The Impact of Matter of<br />
Cardenas-Abreu” at www.immigrantdefenseproject.org.<br />
When a court acting within its jurisdiction vacates a judgment of conviction <strong>for</strong> cause, the<br />
conviction no longer constitutes a valid basis <strong>for</strong> deportation or exclusion. Matter of Rodriguez-<br />
Ruiz, Int. Dec. 3436 (BIA 2000); Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).<br />
Additional comments: Note that although there are strong arguments that a Cali<strong>for</strong>nia<br />
infraction is not a conviction under Matter of Eslamizar, discussed above, this is not a<br />
guaranteed defense, because no decision has specifically ruled on Cali<strong>for</strong>nia infractions. Note<br />
also the limitations on the Lujan-Armenaderiz benefit <strong>for</strong> eliminating a controlled substance<br />
conviction. It is not available if the defendant violated probation, even if he or she ultimately<br />
completed probation <strong>and</strong> withdrew the plea, <strong>and</strong> it is not available if there was a prior pre-plea<br />
diversion. A conviction on direct appeal of right is not a conviction <strong>for</strong> <strong>immigration</strong> purposes.<br />
Remember that appeal includes a “slow plea,” meaning appeal after a submission on a<br />
preliminary examination transcript or police report, or after a plea of guilty or no contest after a<br />
suppression motion per Penal Code Section 1538.5. Note also that the BIA has held that it will<br />
not accept a late-filed appeal (the Ninth Circuit has not yet ruled on this). See § N.2, supra.<br />
J. Sentence of 364 Days or Less<br />
Many offenses become aggravated felonies only if a sentence of a year or more is<br />
imposed. These include crime of violence, theft, receipt of stolen property, burglary, bribery of a<br />
witness, commercial bribery, counterfeiting, <strong>for</strong>gery, trafficking in vehicles that have had their<br />
VIN numbers altered, obstruction of justice, perjury, subornation of perjury, <strong>and</strong> with some<br />
exceptions false <strong>immigration</strong> documents. See 8 USC § 1101(a)(43). Often defense counsel has<br />
more leeway in avoiding a one-year sentence <strong>for</strong> a particular count than in pleading to an<br />
alternate offenses. For creative suggestions about how to arrive at less than a one-year sentence<br />
even in somewhat serious cases, see § N.3.<br />
Many other offenses are aggravated felonies regardless of sentence imposed, <strong>for</strong><br />
example, sexual abuse of a minor, rape, <strong>and</strong> firearms <strong>and</strong> drug offenses. Fraud <strong>and</strong> money<br />
laundering offenses depend on whether $10,000 was lost or involved, not on sentence. Avoiding<br />
Immigrant Legal Resource Center N-143