quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 To prevent a “conviction,” counsel should try to set up a disposition so that a notice of appeal can be filed. If an appeal is pending and if the conviction is the only basis for deportation – e.g., if your client is a lawful permanent resident who does not have a deportable conviction, except for the conviction on direct appeal – then either your client will not be picked up by immigration at the conclusion of the sentence, or an immigration attorney can file a motion to terminate deportation proceedings if the client is picked up and put in removal proceedings. The defendant has the right to file a notice of appeal after a jury or court trial, a submission on a preliminary examination transcript or police report, or after a plea of guilty or no contest after a suppression motion per Penal Code Section 1538.5. This “slow plea” is a particularly potent strategy, especially for a defendant likely to receive either a jail sentence or, perhaps, a short prison sentence because an appeal can be still pending at the time of the defendant’s release from jail or prison in such cases. In practice a date-stamped copy of the appeal may suffice to get a noncitizen who is being detained solely on the basis of the conviction. The BIA recently held that a late-filed appeal will not prevent a conviction from having immigration effect. Nevertheless, as a general matter the traditional requirement that a conviction must be final still applies. 50 The Ninth Circuit has not considered the late-filed appeal issue. See Chapter 8, Defending Immigrants in the Ninth Circuit for further information. I. Vacation of Judgment for Cause The BIA will not question the validity of a state order vacating a conviction for cause. When a court acting within its jurisdiction vacates a judgment of conviction, the conviction no longer constitutes a valid basis for deportation or exclusion. 51 The conviction must have been vacated for cause, not merely for hardship or rehabilitation, however. In Matter of Pickering the BIA held that a conviction is not eliminated for immigration purposes if the court vacated it for reasons “solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings.” 52 However, an actual legal defect that has some relationship to immigration will be given effect, for example ineffective assistance of counsel based on a failure to adequately advise the defendant regarding immigration consequences. See Chapter 8, Defending Immigrants in the Ninth Circuit for further information on appeals. See also Tooby, California Post-Conviction Relief for Immigrants at www.nortontooby.com. 50 See Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009) and Practice Advisory by Manuel Vargas, “Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu” at www.immigrantdefenseproject.org. 51 Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005); Matter of Rodriguez-Ruiz, Int. Dec. 3436 (BIA 2000). 52 Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). Immigrant Legal Resource Center N-35
California Quick Reference Chart and Notes February 2010 § N.3 The Categorical Approach, including Divisible Statutes and the Record of Conviction (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 2, § 2.11, www.ilrc.org/criminal.php) A. Overview: The Categorical and Modified Categorical Analysis B. When Does the Categorical Approach Not Apply to a Conviction? Moral Turpitude and “Circumstance Specific” Offenses C. For a Divisible Statute, What Documents Can the Immigration Judge Consult to Determine the Elements of the Offense of Conviction? D. Charging Papers, Plea Agreements, Minute Orders and Abstracts of Judgment E. Factual Basis for the Plea A comprehensive discussion of the “categorical analysis” appears at Chapter 2, § 2.11, Defending Immigrants in the Ninth Circuit (www.ilrc.org). The discussion here will focus on one issue: how criminal defense counsel can construct a record of conviction under a divisible statute so as to avoid harm a noncitizen defendant’s immigration status. Part A is an overview of how the categorical and modified categorical analysis work and what a divisible statute is. Part B discusses the two immigration categories to which the categorical approach will not to apply to characterize an offense of conviction. Parts C – E discuss strategies for how to manage documents in the record of conviction A. Overview: The Categorical and Modified Categorical Analysis An immigration judge in most cases will use the “categorical approach” to analyze the elements of an offense that was the subject of a prior conviction, in order to determine whether the conviction triggers a penalty, e.g. is an aggravated felony, deportable firearms offense, or crime involving moral turpitude. 53 While this discussion focuses on the use of this approach in immigration proceedings, the same approach and case law are used throughout federal criminal proceedings to evaluate prior convictions as bases for sentence enhancements. 1. The Categorical Approach: Concepts and Burden of Proof The categorical analysis employs the following key concepts in evaluating the immigration penalties that attach to a conviction. ‣ The elements of the offense as defined by statute and case law, and not the actual conduct of the defendant, is the standard used to evaluate whether an offense carries immigration penalties such as being an aggravated felony, crime involving moral turpitude, etc. It does 53 The U.S. Supreme Court has held that the categorical analysis applies to immigration proceedings in the same manner as it applies to federal criminal proceedings. Nijhawan v. Holder, 129 S.Ct. 2294 (June 15, 2009). N-36 Immigrant Legal Resource Center
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