quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
‣ Statements by the noncitizen outside of the criminal judgment (e.g., statements to police,<br />
<strong>immigration</strong> authorities or the <strong>immigration</strong> judge).<br />
‣ In<strong>for</strong>mation from a criminal charge, unless there is evidence that the defendant pled to<br />
the charge<br />
‣ In<strong>for</strong>mation from a dropped charge<br />
‣ In<strong>for</strong>mation from a co-defendant’s case. 62<br />
‣ Courts have long held that a narrative description in a Cali<strong>for</strong>nia Abstract of Judgment<br />
(e.g., “sale”) cannot be consulted. 63<br />
If counsel stipulates that a document provides a factual basis <strong>for</strong> the plea, the contents<br />
may well become part of the reviewable record. See Part D, below.<br />
Reminder: The categorical approach, <strong>and</strong> this discussion, currently does not apply to<br />
questions relating to crimes involving moral turpitude. The controversial case Matter of Silva-<br />
Trevino holds that the categorical approach does not fully apply to a determination of whether an<br />
offense is a crime involving moral turpitude. There<strong>for</strong>e, if the threat is that the offense will be<br />
classed as a CMT, a vague record of conviction is not useful, <strong>and</strong> a specific record of conviction<br />
might or might not control the case. The Ninth Circuit probably is expected to issue a decision on<br />
Silva-Trevino issues in 2010, but unless <strong>and</strong> until the Silva-Trevino holding is overruled, the<br />
suggestions in Parts C, D, <strong>and</strong> E of this section do not apply to CMT’s. See § N. 7 Crimes<br />
Involving Moral Turpitude.<br />
In addition, this discussion does not apply to the government’s proof that an offense is an<br />
aggravated felony because a victim lost more than $10,000 in a fraud offense, <strong>and</strong> in the<br />
future it might be held not to apply to proof of the domestic relationship in a deportable “crime<br />
of domestic violence.” See discussion at Part B.4, supra.<br />
62 See, e.g., Taylor v. United States, supra; Matter of Cassissi, 120 I&N Dec. 136 (BIA 1963) (statement of state<br />
attorney at sentencing is not included); Matter of Y, 1 I&N Dec. 137 (BIA 1941) (report of a probation officer is not<br />
included); Abreu-Reyes v. INS, 350 F.3d 966 (9 th Cir. 2003) withdrawing <strong>and</strong> reversing 292 F.3d 1029 (9 th Cir.<br />
2002) to reaffirm that probation report is not part of the record of conviction <strong>for</strong> this purpose; Tokatly v. Ashcroft,<br />
371 F.3d 613, 620 (9 th Cir. 2004) (testimony to <strong>immigration</strong> judge not included); Matter of Pichardo, Int. Dec. 3275<br />
(BIA 1996)(admission by respondent in <strong>immigration</strong> court is not included); Ruiz-Vidal v. Gonzales, 473 F.3d 1072<br />
(9th Cir. 2007), Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005) (dropped charge); United States v.<br />
Vidal, 426 F.3d 1011 (9th Cir. 2005) (proof pled to complaint “as charged”); Matter of Short, Int. Dec. 3215 (BIA<br />
1989) (where a wife was convicted of assault with intent to commit “any felony,” the <strong>immigration</strong> authorities could<br />
not look to her husb<strong>and</strong>’s record of conviction to define the felony).<br />
63 United States v. Navidad-Marco, 367 F.3d 903 (9 th Cir. 2004). A recent Ninth Circuit opinion mistakenly<br />
contradicted this holding, but then was amended to withdraw that section. SeeAnaya-Ortiz v. Holder__ F.3d __ (9 th<br />
Cir. January 25, 2010), amending Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9 th Cir. 2009).<br />
N-44 Immigrant Legal Resource Center