quick reference chart and notes for determining immigration - ILRC

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