quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 a. The best strategy is to plead specifically to the safer part of the statute. While this is not needed in most cases to prevent deportation, it might be held necessary to help noncitizens qualify for some application for a waiver of the deportation, or a way of getting status. In the firearms example, the best possible plea would be to possession of some specific weapon other than a handgun. b. If that is not possible, and the plea must be to this offense, plead to the language of the statute in the disjunctive (using “or”), not to the facts in the complaint. Again, a vague record of conviction (including a vague factual basis for the plea) will prevent the conviction from making an LPR deportable, and may or may not be held to prevent the conviction from being a bar to relief. A charging paper charging the California offense in the language of the statute is proper 67 and often beneficial to the noncitizen. A plea to an original or amended charging paper quoting only the language of the statute can prevent immigration consequences under a divisible statute. (But note that one California appellate decision found that this kind of charge cannot serve as a factual basis for the plea. 68 ) To amend a plea to erase adverse information, plead to a “Count I” that is amended orally and in writing. If the original complaint is amended in writing by striking certain harmful language, defense counsel should ensure that the writing is completely blacked out and not merely crossed out. In Pema’s case, because the statute is wordy she could plead to, e.g., “possession of an illegal weapon.” Or, plead to, e.g., PC § 12020(a)(1)—but not to the complaint. Or plead to a written plea agreement in the language of all or part of the statute stated in the disjunctive (“or”). To particularize the charge, information that is not pertinent to immigration consequences may be added. In this case, an amended complaint can recite the time, place, name of the victim, and other information that does not identify a firearm. If Pema were to plead to the statute in the disjunctive, and no other evidence that is reviewable under the modified categorical approach establishes that she was convicted of a firearms offense, she could not be held deportable based on the firearms ground. However, if for some reason she had to make an application that was barred by being convicted of a firearms offense, it is not clear that this record would be sufficient to protect her eligibility for that relief. (The Ninth Circuit has held that a noncitizen in this position would 67 “[The charge] may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.” Penal Code § 952. 68 People v. Willard, 154 Cal. App. 4th 1329 (Cal. Ct. App. 2007). N-46 Immigrant Legal Resource Center
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quick reference chart and notes for determining immigration - ILRC

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