quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 remain eligible for relief, but the BIA subsequently held otherwise and the Ninth Circuit has not yet reconsidered the issue. 69 ) c. If the above are not possible, take a West plea to, e.g., “Count 1,” specifically avoiding pleading guilty to Count 1 “as charged”. This strategy might protect the immigrant defendant, but unfortunately there has been some confusion in the cases. In United States v. Vidal 70 the Ninth Circuit en banc held that a plea and waiver form showing the notation “Count 1 10851 Veh. Code” did not admit the factual allegations in the complaint, because the form did not include the “crucial” words plead “as charged” to Count 1. Without the “as charged language, such a plea is only to the elements of the statute – and if the statute is divisible, this is a reasonably good plea for immigration purposes. The Court noted that this specificity is needed because of the fact that a complaint can, and frequently is, amended orally before the plea. In Vidal the defendant had taken a West plea and declined to specify a factual basis for the plea. Because of a subsequent en banc opinion that failed to cite or consider Vidal, 71 the government is arguing that Vidal is limited only to West pleas. Although this does not appear to be the case, some immigration judges are accepting this argument. Therefore, it is important for defense counsel to take a West plea, as well as not plead to a count “as charged,” to support a Vidal defense. If possible, decline to state a factual basis for the West plea; if that is not possible, state a careful factual basis per the advice in Part E. d. Drafting a plea agreement gives criminal defense counsel the opportunity to create the record of conviction that will be determinative in immigration proceedings. Important and beneficial information should be affirmatively set out in the plea agreement or colloquy. Damaging information from the charge can be deleted. Examples: “Defendant pleads guilty to harassing” or to “following or harassing,” 72 “Defendant pleads guilty to offering to transport,” 73 “Defendant pleads guilty to possession of a controlled substance,” in place of the original charge which alleged a specific substance such as heroin, 74 “Defendant pleads guilty to an offensive touching in which no pain was caused” or “pleads guilty to battery” 75 69 See further discussion in Brady, “Defense Arguments: Matter of Almanza-Arenas” at www.ilrc.org/criminal.php. 70 United States v. Vidal, 504 F.3d 1072, 1087 (9 th Cir. 2007)(en banc). 71 See United States v. Snellenberger, 548 F.3d 699, 700 (9 th Cir. 2008) (en banc). 72 This plea to Calif. P.C. § 646.9 is not a crime of violence under Malta-Espinoza, supra. See § 9.13. 73 This is not an aggravated felony, and arguably not a deportable drug offense. See discussion of United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc) in Note 7:, Controlled Substances. 74 See discussion of Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079 (9th Cir. 2007) in Note 7: Controlled Substances. This is not a deportable drug offense. 75 See discussion of Calif. P.C. § 243(e) and Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006), in § N. 9 Domestic Violence. This is not a deportable crime of domestic violence. Immigrant Legal Resource Center N-47
California Quick Reference Chart and Notes February 2010 e. If the charge is phrased in the conjunctive (“and”) while the statute is in the disjunctive (“or”), the defendant should specifically make a plea agreement in the disjunctive. An example is, “I admit to entry with intent to commit larceny or any felony.” (However, if the defendant did not do this, immigration counsel will argue, in the context of conflicting case law, that a plea to a charge in the conjunctive does not necessarily prove the multiple acts. 76 ) f. Do not permit the defendant to admit extraneous facts that might have a negative immigration effect, and that are not required for conviction. Immigration authorities sometimes consider admission of facts not required for a conviction, even though this appears to violate rules governing the categorical analysis. 77 Counsel should assume conservatively that any fact admitted by the defendant may be considered by immigration authorities or a court, although immigration counsel may have strong arguments against this. (Generally, adding additional facts is fine, especially as needed to provide specificity as a factual basis, as long as the facts do not have immigration implications.) g. Information from dismissed charges cannot be considered This would violate the fundamental rule that there must be proof that the allegations in the charge were pled to. In case of doubt, bargain for a new count. Example: The Ninth Circuit held that although a dropped charge to H&S § 11378(a) identified methamphetamine as the controlled substance, this information could not be used to hold that the new charge of possession of a “controlled substance” under H&S § 11377(a) involved methamphetamine. Since the substance could not be identified, it was not possible to prove that it appeared on federal controlled substance lists, and the noncitizen was held not deportable. 78 See § N.8 Controlled Substances. h. Practice Pointer: Be sure to check the court documents for accuracy. Get a copy of any beneficial documents for the defendant If the defendant is put in removal proceedings, most of the time the government relies on written documents (the complaint, minute order, abstract of judgment, and written waiver form). Check the minute orders, Abstract of Judgment, and any interlineations the clerk puts on any 76 Malta-Espinoza v. Gonzales, supra; see also In re Bushman, (1970) 1 Cal.3d 767, 775 (overruled on other grounds). However, with no discussion the Ninth Circuit en banc held the opposite in Snellenberger, supra at 701. 77 See discussion of Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143 (1990) at Chapter 2, § 2.11(C); see also Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) (defendant convicted of an assault offense that had no element of use of a firearm was not deportable under the firearms ground, even though he pleaded guilty to an indictment that alleged he assaulted the victim with a gun). 78 Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079 (9th Cir. 2007). See generally Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005). N-48 Immigrant Legal Resource Center
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