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