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 />
remain eligible <strong>for</strong> relief, but the BIA subsequently held otherwise <strong>and</strong> the Ninth Circuit has not<br />
yet reconsidered the issue. 69 )<br />
c. If the above are not possible, take a West plea to, e.g., “Count 1,”<br />
specifically avoiding pleading guilty to Count 1 “as charged”.<br />
This strategy might protect the immigrant defendant, but un<strong>for</strong>tunately there has been some<br />
confusion in the cases. In United States v. Vidal 70 the Ninth Circuit en banc held that a plea <strong>and</strong><br />
waiver <strong>for</strong>m showing the notation “Count 1 10851 Veh. Code” did not admit the factual<br />
allegations in the complaint, because the <strong>for</strong>m did not include the “crucial” words plead “as<br />
charged” to Count 1. Without the “as charged language, such a plea is only to the elements of<br />
the statute – <strong>and</strong> if the statute is divisible, this is a reasonably good plea <strong>for</strong> <strong>immigration</strong><br />
purposes. The Court noted that this specificity is needed because of the fact that a complaint<br />
can, <strong>and</strong> frequently is, amended orally be<strong>for</strong>e the plea.<br />
In Vidal the defendant had taken a West plea <strong>and</strong> declined to specify a factual basis <strong>for</strong> the<br />
plea. Because of a subsequent en banc opinion that failed to cite or consider Vidal, 71 the<br />
government is arguing that Vidal is limited only to West pleas. Although this does not appear to<br />
be the case, some <strong>immigration</strong> judges are accepting this argument. There<strong>for</strong>e, it is important <strong>for</strong><br />
defense counsel to take a West plea, as well as not plead to a count “as charged,” to support a<br />
Vidal defense. If possible, decline to state a factual basis <strong>for</strong> the West plea; if that is not possible,<br />
state a careful factual basis per the advice in Part E.<br />
d. Drafting a plea agreement gives criminal defense counsel the opportunity<br />
to create the record of conviction that will be determinative in<br />
<strong>immigration</strong> proceedings.<br />
Important <strong>and</strong> beneficial in<strong>for</strong>mation should be affirmatively set out in the plea<br />
agreement or colloquy. Damaging in<strong>for</strong>mation from the charge can be deleted.<br />
Examples: “Defendant pleads guilty to harassing” or to “following or harassing,” 72<br />
“Defendant pleads guilty to offering to transport,” 73 “Defendant pleads guilty to<br />
possession of a controlled substance,” in place of the original charge which alleged a<br />
specific substance such as heroin, 74 “Defendant pleads guilty to an offensive touching in<br />
which no pain was caused” or “pleads guilty to battery” 75<br />
69 See further discussion in Brady, “Defense Arguments: Matter of Almanza-Arenas” at www.ilrc.org/criminal.php.<br />
70 United States v. Vidal, 504 F.3d 1072, 1087 (9 th Cir. 2007)(en banc).<br />
71 See United States v. Snellenberger, 548 F.3d 699, 700 (9 th Cir. 2008) (en banc).<br />
72 This plea to Calif. P.C. § 646.9 is not a crime of violence under Malta-Espinoza, supra. See § 9.13.<br />
73 This is not an aggravated felony, <strong>and</strong> arguably not a deportable drug offense. See discussion of United States v.<br />
Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc) in Note 7:, Controlled Substances.<br />
74 See discussion of Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079 (9th Cir. 2007) in Note 7: Controlled Substances.<br />
This is not a deportable drug offense.<br />
75 See discussion of Calif. P.C. § 243(e) <strong>and</strong> Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006), in § N. 9 Domestic<br />
Violence. This is not a deportable crime of domestic violence.<br />
Immigrant Legal Resource Center N-47