quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Adjudication in juvenile delinquency proceedings does not constitute a conviction, regardless of
the nature of the offense. Matter of Devison, 22 I&N Dec. 1362 (BIA 2000).
An infraction is not a conviction where it is handled in non-conventional criminal proceedings
that do not require the usual constitutional protections of a criminal trial, such as access to
counsel, right to jury trial, etc. Matter of Eslamizar, 23 I&N Dec. 684, 687-88 (BIA 2004).
A conviction currently on direct appeal of right does not have sufficient finality to constitute a
“conviction” for any immigration purpose. Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576 (1955);
see also discussion in Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009) and Practice
Advisory by Manuel Vargas, “Conviction Finality Requirement: The Impact of Matter of
Cardenas-Abreu” at www.immigrantdefenseproject.org.
When a court acting within its jurisdiction vacates a judgment of conviction for cause, the
conviction no longer constitutes a valid basis for deportation or exclusion. Matter of Rodriguez-
Ruiz, Int. Dec. 3436 (BIA 2000); Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).
Additional comments: Note that although there are strong arguments that a California
infraction is not a conviction under Matter of Eslamizar, discussed above, this is not a
guaranteed defense, because no decision has specifically ruled on California infractions. Note
also the limitations on the Lujan-Armenaderiz benefit for eliminating a controlled substance
conviction. It is not available if the defendant violated probation, even if he or she ultimately
completed probation and withdrew the plea, and it is not available if there was a prior pre-plea
diversion. A conviction on direct appeal of right is not a conviction for immigration purposes.
Remember that appeal includes a “slow plea,” meaning appeal after a submission on a
preliminary examination transcript or police report, or after a plea of guilty or no contest after a
suppression motion per Penal Code Section 1538.5. Note also that the BIA has held that it will
not accept a late-filed appeal (the Ninth Circuit has not yet ruled on this). See § N.2, supra.
J. Sentence of 364 Days or Less
Many offenses become aggravated felonies only if a sentence of a year or more is
imposed. These include crime of violence, theft, receipt of stolen property, burglary, bribery of a
witness, commercial bribery, counterfeiting, forgery, trafficking in vehicles that have had their
VIN numbers altered, obstruction of justice, perjury, subornation of perjury, and with some
exceptions false immigration documents. See 8 USC § 1101(a)(43). Often defense counsel has
more leeway in avoiding a one-year sentence for a particular count than in pleading to an
alternate offenses. For creative suggestions about how to arrive at less than a one-year sentence
even in somewhat serious cases, see § N.3.
Many other offenses are aggravated felonies regardless of sentence imposed, for
example, sexual abuse of a minor, rape, and firearms and drug offenses. Fraud and money
laundering offenses depend on whether $10,000 was lost or involved, not on sentence. Avoiding
Immigrant Legal Resource Center N-143