quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 a one-year sentence in these cases will not prevent an aggravated felony. See § N.5 on aggravated felonies. K. Is your client a U.S. citizen or national without knowing it? A United States citizen or national cannot be deported. Any person born in the United States is a U.S. citizen, except for certain children of foreign diplomats. Persons born in Puerto Rico, Guam and U.S. Virgin Islands, as well as those born after November 4, 1988, and in many cases before, in the Northern Mariana Islands also are U.S. citizens. 8 USC § 1101(a)(38), INA § 101(a)(38). A national of the United States is not a U.S. citizen, but cannot be deported. Persons born in an outlying possession of the United States, for example in American Samoa and Swains Islands, are nationals. 218 See additional discussion in § N.1, Part C. Many people who were born in other countries also are U.S. citizens and may not know it. Many people born abroad inherited U.S. citizenship at birth from a parent without being aware of it. Others who were permanent residents here as children may have automatically become citizens when a parent naturalized. To begin the inquiry, ask the defendant the following two threshold questions. If the answer to either one is yes, get immigration counsel to see if citizenship indeed was conveyed. • When you were born did you have a parent or a grandparent who was a U.S. citizen? • At any time before your 18 th birthday did the following take place (in any order): you were a permanent resident, and one or both parents naturalized to U.S. citizenship? 218 See INA §§ 308, 8 USC §1408 and INA §101(a)(29), 8 USC §1101(a)(29). For a complete description of who can be noncitizen nationals, please see INA § 308 and books such as Cohen et all, Naturalization: An Advocates Guide at www.ilrc.org.. N-144 Immigrant Legal Resource Center
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quick reference chart and notes for determining immigration - ILRC

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