quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
D. Charging Papers, Plea Agreements, Minute Orders and Abstracts of Judgment 64
1. Goals
For allegations in a criminal charge to be considered by immigration authorities in a
modified categorical analysis, there must be proof that the defendant pled to or was convicted of
the specific charge as worded. A charge coupled with only proof of conviction under the statute
is not sufficient. 65
As defense counsel, your first step is to understand what you can and cannot permit the
record to reveal. To take a straightforward example, assume that your client is a permanent
resident who is charged with possession of a firearm under Calif. PC § 12020(a)(1). Your goal is
to avoid making your client deportable. You look the offense up in the California Quick
Reference Chart and see that the offense is “divisible” for purposes of the firearms offense
deportation ground. The advice is either (a) plead to possession of a specific non-firearm
weapon (e.g., brass knuckles), or (b) keep the record vague as to what type of weapon was
possessed, so as to avoid establishing that the offense was a firearm.
Between these two options, a plea to the “good” section of a statute—here, possession of
brass knuckles—always is the best solution, but sometimes is not possible. In this case, where
your goal is to prevent the government from meeting its burden to prove that a permanent
resident is deportable, it is adequate to simply keep the record vague, so as to avoid establishing
that the person pled guilty to the “bad” section of the statute, e.g., to possession of a firearm.
This section presents suggestions for keeping the record vague, while still meeting the
demands of the court and prosecution.
2. Strategies: Charging Papers and Pleas
The following are tips for creating a vague record for immigration purposes, by working
with the charge and the requirement of a factual basis. It may be useful to consider a case
example in reviewing these suggestions.
Example: Pema, a permanent resident, will become deportable under the firearms
ground if she is convicted of using, possessing or carrying a firearm. 66 She is charged in
Count 1 with possession of a handgun under Calif. PC § 12020(a)(1). This is a divisible
statute for purposes of the firearms deportation ground, since it includes offenses that
involve firearms as well as offenses that involve knives, brass knuckles, etc. How might
you structure a plea to § 12020(a)(1) to avoid making her deportable?
64 Thanks to Norton Tooby, Rachael Keast, Holly Cooper and especially Michael K. Mehr for their continuing
valuable input on this topic.
65 See, e.g., United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9 th Cir. 2002) (en banc); United States v.
Velasco-Medina, 305 F.3d 839, 852 (9 th Cir. 2002).
66 INA § 237(a)(2)(C), 8 USC § 1227(a)(2)(C).
Immigrant Legal Resource Center N-45