quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 Example: Look up Calif. Vehicle C. § 23152 in the Chart. The Supreme Court held that a “crime of violence” requires more than negligent intent, and circuit courts have held that it requires more than recklessness. Since this DUI requires only negligent intent, it is categorically not a crime of violence, and no conviction may come within that definition. 3. Working with the Record of Conviction in a Divisible Statute A criminal statute that includes various offenses, some of which carry an immigration penalty while others do not, is referred to in immigration proceedings as a “divisible statute.” Under the modified categorical approach, in order to ascertain which of the various offenses was the offense of conviction, an immigration judge may consider only certain limited documents from the individual’s criminal record of conviction. Example: Lois is charged with having been convicted of a drug trafficking aggravated felony and a deportable controlled substance offense, based on her conviction under H&S § 11379(a). This section is a divisible statute for both purposes because the California drug list includes substances that both are and are not on the federal list. The government has the burden of proof. The government presents a police report that charges that Lois possessed methamphetamines, a probation report stating that Lois was convicted of possession of a methamphetamine, and an Abstract of Judgment showing that Lois pled guilty to § 11379. Lois’ defense attorney did not stipulate that the police report or probation report provide a factual basis for the plea. Can the immigration judge find that Lois is deportable and convicted of an aggravated felony? Under the modified categorical approach, the judge may not use information from the police or probation report. The Abstract is inconclusive. The government did not meet its burden of proof and she is not deportable. A more detailed discussion of how to work with various court documents to control the reviewable record of conviction appears in Parts C-E, infra. N-40 Immigrant Legal Resource Center
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