quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
served, the conviction for theft had less than a year’s sentence and was not of an
“aggravated felony.”
• Where defense counsel handling a probation violation pled to a new offense, rather than
adding time to the original offense that would cause the sentence to exceed 364 days, the
residential burglary conviction was not of an aggravated felony. See additional strategies
at § N.4 Sentence Solutions.
Where defense counsel negotiated a plea to possession for sale of a “controlled substance” rather
than of methamphetamine, the conviction did not cause deportability and was not an aggravated
felony as a drug trafficking offense. See § N.8 Controlled Substances.
Where defense counsel pled to transportation rather than sale of heroin under H&S § 11379(a),
the conviction was not of an aggravated felony. See § N.8 Controlled Substances.
Where counsel pled to P.C. § 243(e) (spousal battery) and kept the conviction record clear of
evidence that more than offensive touching had occurred, the offense did not cause deportability
as a crime of domestic violence – but the defendant still was able to accept anger management
class, a stay-away order and jail as a condition of probation. See § N.9 Domestic Violence.
Of Particular Note: Practice Tools in these Materials. Along with detailed instructions
for pleas, these materials contain some new user-friendly sections.
§ N.1 contains:
‣ Defense goals spelled out according to immigration status (Part C)
‣ How to Avoid an Immigration “Strike” – a conviction that will cause an enhanced
sentence for illegal re-entry after removal with a prior (Part D)
‣ Ten Crucial Steps to Defending a Noncitizen: From Interview through Appeal (Part E)
§ N.2 contains a discussion of the critical defense tool, the categorical and modified categorical
approach, i.e. dealing with the reviewable record of conviction and divisible statutes.
§ N.7 contains a discussion of how to deal with the fact that currently immigration authorities do
not use the full categorical approach to determine whether an offense is a crime involving moral
turpitude, under Matter of Silva-Trevino.
§ N. 14 contains:
‣ A summary of ideas for alternate pleas, arranged by charge (e.g., violent offenses)
‣ One-paragraph summaries of common immigration defenses, with citations, which
counsel can give to noncitizen defendants who will go to removal proceedings; these
summaries may be simply handed to the immigration judge by unrepresented persons.
N-8 Immigrant Legal Resource Center