quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
This discussion describes the steps criminal defense counsel may take to do this analysis.
The first step is to identify what are the immigration risks of a potential plea. While the best
option is to discuss the case with an immigration and crimes expert, you can make a very good
start by looking the offense up in the California Quick Reference Chart.
An offense does not categorically, i.e., necessarily, come within a term in an immigration
provision unless “the ‘full range of conduct’ covered by [the criminal statute] falls within the
meaning of that term.” 59 The Chart will indicate if this is the case with a simple yes or no.
Example: Look up P.C. § 288(a) in the Chart. You can see that every conviction will be
held to be an aggravated felony as sexual abuse of a minor, or in this lingo, means that §
288(a) is “categorically” an aggravated felony. It also is categorically a crime involving
moral turpitude and a crime of child abuse. Criminal defense counsel must assume that
there is no way to plead to § 288(a) and avoid these consequences.
An offense is divisible for purposes of an immigration provision if it contains multiple
offenses, only some of which come within the provision.
Example: Look up H&S § 11352(a) in the Chart. You can see that a plea to sale of a
controlled substance is an aggravated felony, while a plea to transportation or to offering
to commit an offense is not an aggravated felony. Thus, P.C. § 11352 is divisible for
purposes of being an aggravated felony. Your goal will be to plead to a part of the statute
that is not an aggravated felony (or if that is not possible, at least keep the plea vague
enough so that it does not rule out that possibility).
(Note that this offense is divisible in another way, in that § 11352 includes some
controlled substances that are not on the federal list at all. See the example of Tensin,
supra.)
A criminal code section can be divisible in terms of immigration consequences because it
contains multiple subsections, e.g. Calif. P.C. § 245(a)(1) and (2) is divisible for purposes of the
firearms deportation ground. The statute may define the crime in the disjunctive, such as sale
(an aggravated felony) or offer to sell (not an aggravated felony) a controlled substance under
Calif. H&S § 11352(a). Courts have held that a broadly or vaguely written section can be held
divisible, such as annoying or molesting a child under P.C. § 647.6(a) (divisible as “sexual abuse
of a minor”).
An offense is categorically not a match with an immigration provision if the statute
entirely lacks an element required by the provision. In that case no conviction under the statute
will come within the immigration provision.
59 See, e.g., United States v. Baron-Medina, 187 F.3d 1144, 1146 (9 th Cir. 1999)(citation omitted); Matter of
Palacios, Int. Dec. 3373 (BIA 1998).
Immigrant Legal Resource Center N-39