quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
regardless of the nature of the offense. 43 If the record of proceedings indicates that proceedings<br />
were in juvenile court, there was no conviction.<br />
Juvenile court proceedings still can create problems <strong>for</strong> juvenile immigrants under the socalled<br />
“conduct grounds” <strong>and</strong> <strong>for</strong> <strong>immigration</strong> relief discretionary purposes, however. A<br />
juvenile delinquency disposition that establishes that the youth has engaged in prostitution, is or<br />
has been a drug addict or abuser, or has been or helped a drug trafficker, will cause <strong>immigration</strong><br />
problems. Undocumented juvenile defendants might be eligible to apply <strong>for</strong> lawful <strong>immigration</strong><br />
status.<br />
FOR A HANDOUT ON REPRESENTING JUVENILES in delinquency or dependency<br />
proceedings or family court proceedings, see § N. 16, infra. See also free materials, including<br />
Immigration Benchbook <strong>for</strong> Juvenile <strong>and</strong> Family Courts, available at www.ilrc.org (go to<br />
Immigrant Youth tab) <strong>and</strong> Defending Immigrants Partnership website at<br />
www.defendingimmigrants.org (go to Library then consult folder on Representing Noncitizen<br />
Youth; membership is required, but is free). For an extensive discussion of representing noncitizens<br />
in delinquency, see Defending Immigrants in the Ninth Circuit, Chapter 2A <strong>and</strong> <strong>ILRC</strong>’s<br />
<strong>for</strong>thcoming 2010 manual on Immigrant Youth.<br />
FOR FURTHER INFORMATION on the “reason to believe” drug trafficking ground <strong>and</strong><br />
other drug conduct grounds, see § N.8 Controlled Substances, <strong>and</strong> see Defending Immigrants in<br />
the Ninth Circuit, Chapter 3, § 3.10.<br />
F. Where Adjudication is Withheld, a Guilty Plea Plus Unconditionally Suspended<br />
Fine (or Other Suspended Non-Incarceratory Sanction) is Not a Conviction<br />
In Retuta v. Holder 44 the Ninth Circuit found that there was no conviction <strong>for</strong><br />
<strong>immigration</strong> purposes where a noncitizen pled guilty <strong>and</strong> the judge deferred entry of judgment,<br />
imposed a small fine, <strong>and</strong> immediately suspended the fine with no conditions attached. The<br />
Court ruled that the suspended fine did not amount to the “punishment, penalty or restraint”<br />
required to meet the statutory definition of a conviction <strong>for</strong> <strong>immigration</strong> purposes.<br />
This appears to have been an unusual record, since probation is an element of deferred<br />
entry of judgment under P.C. § 1000. While this case involved a DEJ drug possession<br />
disposition, there is no requirement that the offense involve a controlled substance, or be a first<br />
offense of any kind, to come within this rule. The only requirements are that (a) “adjudication of<br />
guilt has been withheld” <strong>and</strong> (b) the only penalty is a small fine or other non-incarceratory<br />
sanction is imposed but suspended without condition. If that scenario arises in any type of<br />
proceedings that do not result in final adjudication, this may not amount to a conviction.<br />
43 Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981). The<br />
exceptions are that certain delinquency dispositions may <strong>for</strong>m a bar to applying <strong>for</strong> Family Unity (see Defending<br />
Immigrants in the Ninth Circuit, Chapter 11, § 11.24) or to petitioning <strong>for</strong> a relative (see Note 11, infra, or<br />
Defending Immigrants, Chapter 6, § 6.22).<br />
44 Retuta v. Holder, __ F.3d __ (9 th Cir. January 7, 2010).<br />
Immigrant Legal Resource Center N-33