quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 not matter what happened that dark night. It only matters what happened that day in criminal court. Example: Harvey committed a violent offense, but he pled guilty to accessory after the fact. He is not deportable for having a conviction relating to violence. He is deportable based only on consequences that attach to a conviction for accessory after the fact. ‣ In many cases a statute will cover multiple offenses, only some of which carry the immigration consequence. For example, P.C. § 12020 covers possession of firearms and of weapons that are not firearms, but only a conviction of a firearms offense would cause deportability under the firearms ground. 54 Section 12020(a) is a divisible statute for purposes of the firearms deportability ground. Faced with a conviction under § 12020(a), how does the immigration judge (“IJ”) determine whether it was for possession of a firearm versus another weapon? Under the “modified categorical approach” the IJ may consult only information from certain strictly limited documents from the record of conviction, which go to an element required for guilt. These documents are discussed in Parts C-E below, but generally they include the plea agreement, plea colloquy, information in a charge if there is sufficient proof that the defendant pled guilty to that charge, jury instructions and findings under certain circumstances, and similar documents. They do not include a police report or probation report – unless such document was stipulated to as containing a factual basis for the plea. They do not include comments by the noncitizen later to the IJ, or other information that does not directly record the official findings of the criminal court judge. Example: Tensin signed a plea agreement admitting that he possessed an unspecified “controlled substance” under H&S Code § 11377(a). That section is “divisible” for purposes of immigration penalties for controlled substance convictions. Immigration law recognizes controlled substances listed in the federal drug schedules, and California law includes some substances that are, and some that are not, contained in the federal schedules. 55 In Tensin’s case the police report states that the controlled substance was heroin. Counsel did not stipulate that the police report contained a factual basis for the plea; instead he stipulated to the carefully amended charge and the plea agreement, which only reference an unspecified “controlled substance.” Under the modified categorical approach the immigration judge may use information from the plea agreement, but not from the police report, to determine the nature of the controlled substance. 54 The firearms deportability ground is at 8 USC § 1227(a)(2)(C), INA § 237(a)(2)(C). See further discussion at Note 10: Firearms Offenses. 55 See Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007, Matter of Paulus, 11 I&N Dec. 274 (BIA 1965), and discussion in § N.7. Immigrant Legal Resource Center N-37
California Quick Reference Chart and Notes February 2010 ‣ Burden of proof: Deportability. The government has the burden to prove by clear and convincing evidence that a permanent resident (or other admitted noncitizen) is deportable. 56 If a criminal statute is divisible for purposes of a deportation ground, and the record of conviction is sufficiently vague, the government cannot meet its burden and the person is not deportable. 57 Example: In the above example, assume that Tensin is a lawful permanent resident and the government is arguing that he should be removed because he is deportable for a controlled substance conviction. With this vague record of conviction, the government cannot meet its burden of proof, and Tensin is not deportable. ‣ Burden of proof: Admissibility and Applications for Relief. The Ninth Circuit held that the government also has the burden to prove that a conviction under a divisible statute will make a noncitizen inadmissible or eligible for status or relief. A vague record of conviction means that the noncitizen wins, just as it does in proving deportability. However, the BIA ruled against this, and the Ninth Circuit has not yet reconsidered the issue. 58 Until this is finally resolved, criminal defense counsel cannot assume that a vague record of conviction will be sufficient for defendants who need to apply for relief or status. This would include defendants who are undocumented, or deportable permanent residents who will have to apply for some relief to stop removal, or any other noncitizen who must apply for benefit or relief. Counsel should attempt to plead specifically to an offense under the divisible statute that does not carry the adverse immigration consequence. If that is not possible, however, counsel should attempt to create a vague record of conviction. Example: This time assume that Tensin is an undocumented man who is applying to get a green card through his citizen wife. Immigration authorities will assert that Tensin has the burden of producing documents to prove that the unspecified controlled substance of his conviction was not one on the federal lists. Criminal defense counsel should plead specifically to such a substance (examples are listed in § N.8 Controlled Substances, infra). If that is not possible, counsel should create a vague record and plead to “a controlled substance.” If possible, counsel should have a back-up strategy, just in case the Ninth Circuit ultimately does not reaffirm its beneficial rule. 2. Analyzing Criminal Statutes and Reading the Chart: What immigration provision is a threat? Is there any way to violate the criminal statute that does not come within the immigration provision? 56 INA § 240(c)(3)(A), 8 USC § 1229a(c)(3)(A). 57 See, e.g., discussion in United States v. Rivera-Sanchez, 247 F.3d 905, 907-8 (9 th Cir. 2001)(en banc); United States v. Corona-Sanchez, 291 F.3d 1201, 1203-4 (9 th Cir. 2002) (en banc). See also Shepard v. United States, 125 S.Ct. 1254 (2005); Martinez-Perez v. Gonzales, 417 F.3d 1022 (9 th Cir. 2005). 58 See Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009), Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007) and further discussion in Brady, “Defense Arguments: Matter of Almanza-Arenas” at www.ilrc.org/crim.php. N-38 Immigrant Legal Resource Center
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