quick reference chart and notes for determining immigration - ILRC

More documents

Recommendations

Info

California Quick Reference Chart and Notes February 2010 regardless of the nature of the offense. 43 If the record of proceedings indicates that proceedings were in juvenile court, there was no conviction. Juvenile court proceedings still can create problems for juvenile immigrants under the socalled “conduct grounds” and for immigration relief discretionary purposes, however. A juvenile delinquency disposition that establishes that the youth has engaged in prostitution, is or has been a drug addict or abuser, or has been or helped a drug trafficker, will cause immigration problems. Undocumented juvenile defendants might be eligible to apply for lawful immigration status. FOR A HANDOUT ON REPRESENTING JUVENILES in delinquency or dependency proceedings or family court proceedings, see § N. 16, infra. See also free materials, including Immigration Benchbook for Juvenile and Family Courts, available at www.ilrc.org (go to Immigrant Youth tab) and Defending Immigrants Partnership website at www.defendingimmigrants.org (go to Library then consult folder on Representing Noncitizen Youth; membership is required, but is free). For an extensive discussion of representing noncitizens in delinquency, see Defending Immigrants in the Ninth Circuit, Chapter 2A and ILRC’s forthcoming 2010 manual on Immigrant Youth. FOR FURTHER INFORMATION on the “reason to believe” drug trafficking ground and other drug conduct grounds, see § N.8 Controlled Substances, and see Defending Immigrants in the Ninth Circuit, Chapter 3, § 3.10. F. Where Adjudication is Withheld, a Guilty Plea Plus Unconditionally Suspended Fine (or Other Suspended Non-Incarceratory Sanction) is Not a Conviction In Retuta v. Holder 44 the Ninth Circuit found that there was no conviction for immigration purposes where a noncitizen pled guilty and the judge deferred entry of judgment, imposed a small fine, and immediately suspended the fine with no conditions attached. The Court ruled that the suspended fine did not amount to the “punishment, penalty or restraint” required to meet the statutory definition of a conviction for immigration purposes. This appears to have been an unusual record, since probation is an element of deferred entry of judgment under P.C. § 1000. While this case involved a DEJ drug possession disposition, there is no requirement that the offense involve a controlled substance, or be a first offense of any kind, to come within this rule. The only requirements are that (a) “adjudication of guilt has been withheld” and (b) the only penalty is a small fine or other non-incarceratory sanction is imposed but suspended without condition. If that scenario arises in any type of proceedings that do not result in final adjudication, this may not amount to a conviction. 43 Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981). The exceptions are that certain delinquency dispositions may form a bar to applying for Family Unity (see Defending Immigrants in the Ninth Circuit, Chapter 11, § 11.24) or to petitioning for a relative (see Note 11, infra, or Defending Immigrants, Chapter 6, § 6.22). 44 Retuta v. Holder, __ F.3d __ (9 th Cir. January 7, 2010). Immigrant Legal Resource Center N-33
California Quick Reference Chart and Notes February 2010 G. Infractions Under some state laws certain minor offenses—sometimes called infractions—are 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. In Matter of Eslamizar 45 the BIA has held that this type of disposition will not be considered a conviction for immigration purposes. This applies to both foreign and national dispositions. It appears that conviction of a California infraction, in a proceeding that lacks the constitutional safeguards available in a misdemeanor prosecution, ought to be held not to be a conviction for immigration purposes. However, there is no ruling yet on this issue, so this is not a guaranteed defense. In Eslamizar the BIA held that a conviction for immigration purposes is “a judgment in a proceeding which provides the constitutional safeguards normally attendant upon a criminal adjudication.” It found that a finding of guilt under an Oregon statute did not qualify based on several factors. The Oregon “violation” is not considered a crime since it does not result in any legal disability or disadvantage under Oregon law; there is no right to jury or counsel; and the prosecution only has to prove guilt by a preponderance of the evidence instead of beyond a reasonable doubt. In California, as in Oregon, infractions are not considered “crimes.” The procedure in California for prosecuting an infraction confers no right to jury or defense counsel and it is not punishable by imprisonment. 46 However, whereas Oregon only requires the prosecutor to prove a preponderance of the evidence, in California the prosecutor must prove guilt beyond a reasonable doubt. 47 While immigration counsel have a strong argument that this difference ought not to be enough to distinguish a California infraction from an Oregon violation under Eslamizar, 48 there is no guarantee that the courts or consulates will so rule. Therefore while this is a reasonably good disposition, it is not guaranteed not to be a conviction. H. Appeal, Including Appeal after a Suppression Motion (“Slow Plea”) It has long been held that a conviction currently on direct appeal of right does not have sufficient finality to constitute a “conviction” for any immigration purpose. 49 While some circuits have found that 1996 legislation subverted this rule, in the Ninth Circuit it is clear that a conviction on direct appeal of right will not be held to constitute a conviction for immigration purposes. 45 Matter of Eslamizar, 23 I&N Dec. 684, 687-88 (BIA 2004). 46 Calif. PC §19.6. 47 Calif .P. C. § 19.7 (“all provisions of law relating to misdemeanors shall apply to infractions including … burden of proof.”). 48 For more discussion on infractions, see Safe Havens, by Norton Tooby and J.J. Rollin, Chapter 4, § 4.11. 49 Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576 (1955) (holding that an “on file” system in Massachusetts did not constitute sufficient finality to be a basis for deportation under the Act). N-34 Immigrant Legal Resource Center
Page 1 and 2:
California Quick Reference Chart an
Page 3 and 4:
Page 5 and 6:
www.ilrc.org/criminal.php QUICK REF
Page 7 and 8: www.ilrc.org/criminal.php CALIFORNI
Page 27 and 28: California Quick Reference Chart an
Page 57: California Quick Reference Chart an
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Page 133 and 134:
Page 135 and 136:
Page 137 and 138:
Page 139 and 140:
Page 141 and 142:
Page 143 and 144:
Page 145 and 146:
Page 147 and 148:
Page 149 and 150:
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
Page 171 and 172:
Page 173 and 174:
Page 175 and 176:
Page 177:
show all

quick reference chart and notes for determining immigration - ILRC

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?