quick reference chart and notes for determining immigration - ILRC

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www.ilrc.org/criminal.php CALIFORNIA CODE SECTION Penal § 466 OFFENSE AGGRAVATED FELONY Poss burglary Not AF. tools with intent to enter, altering keys, making or repairing instrument CRIME INVOLVING MORAL TURPITUDE-- These findings are questionable Probably not CMT, unless ROC shows intent to commit CMT (felonious entry alone is not CMT) Altering, repairing instruments are not CMT, but see Advice OTHER DEPORTABLE, INADMISSIBLE GROUNDS No. ADVICE AND COMMENTS Because Silva-Trevino permits wide range of evidence on CMT, best course is to plead specifically to something other than CMT (e.g., repairing instruments), which may cut off the inquiry. Penal §470 Forgery Yes AF if 1-yr sentence imposed. If this also constitutes fraud, may be AF if $10,000 loss to victim Yes CMT. No. Avoid AF by avoiding 1-yr sentence; see Note: Sentence. See P.C. 529(3) and Note "Safer Pleas." If $10,000 loss to victim of fraud, see advice for PC 476(a). Penal §476(a) Bad check with intent to defraud Yes if loss to the victim/s was $10,000 or more; if offense also is forgery, AF if 1- yr sentence imposed. Yes CMT No If there was $10k loss to the victim/s, but sentence can be 364 or less for any single count, plead to theft to avoid an AF. Supreme Court has expanded evidence gov't permitted to use to prove $10k loss; be sure to read Note "Burglary, Theft and Fraud." See PC 529(c) to possibly avoid a CMT. Avoid 1-yr sentence to avoid possible AF as forgery. AF = Aggravated Felony COV = Crime of Violence CMT = Crime Involving Moral Turpitude CS = Controlled Substance DV = Domestic Violence ROC = Record of Conviction
www.ilrc.org/criminal.php CALIFORNIA CODE SECTION Penal §484 et seq., §487 OFFENSE Theft (petty or grand) AGGRAVATED FELONY Divisible: Theft w/ 1 yr sentence is AF, but theft of labor is not "theft" for AF purposes. See Advice re theft by fraud or deceit. CRIME INVOLVING MORAL TURPITUDE-- These findings are questionable OTHER DEPORTABLE, INADMISSIBLE GROUNDS ADVICE AND COMMENTS Yes CMT. No See Notes "Theft, Fraud" and "CMT." To avoid Agg Felony as "theft," avoid 1-yr sent; see Note "Sentence." If 1-yr or more imposed, identify theft of services rather than property in the ROC, or leave vague between property and services. To avoid Agg Felony as "fraud": If loss to victim/s exceeded $10,000, a plea to theft by fraud, embezzlement, etc. is an agg felony. Gov't can use wide range of evidence to prove $10k loss. Avoid the problem by ID'ing straight theft (or if that is not possible, leaving ROC vague) and avoiding 1 yr sentence on any one count. Re CMT: To avoid CMT, and if 1-yr sentence not imposed, consider plea to PC 496(a) specifically with intent to temporarily deprive. If you must plead to 484, which is a CMT: to qualify for petty offense exception to inadmissibility grnd, reduce felony to misdo and/or plead petty theft. To avoid deportability plead petty theft or attempted misd grand theft to keep maximum possible sentence under 1 yr. Petty with a prior is an AF if 1 yr sentence imposed. Penal §490.1 Petty theft (infraction) Not AF. Yes CMT, but might be held not to be a "conviction." No. There is a good argument, but no guarantee, that a Calif. infraction is not a "conviction" at all for imm purposes. See Note: Def of Conviction. Since there's no guarantee, this is a better plea than theft, but avoid if necessary to not have CMT. Penal §496 Receiving stolen property Yes AF if 1-yr sentence imposed Divisible: plead to intent to temporarily deprive to avoid CMT, see Advice No To avoid AF avoid 1-yr sentence; see Note "Sentence." If will receive 1-yr sentence, consider plea to PC 484 and plead to, or leave ROC open to, theft of services. See Note: Theft. Re CMT: PC 496(a) is not CMT if with only temporary intent to deprive owner. Castillo-Cruz 581 F.3d 1154 (9th Cir. 2009). Plead to that specifically to try to forestall Silva-Trevino factual inquiry on CMT. See Note: CMT AF = Aggravated Felony COV = Crime of Violence CMT = Crime Involving Moral Turpitude CS = Controlled Substance DV = Domestic Violence ROC = Record of Conviction
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