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
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
e. If the charge is phrased in the conjunctive (“<strong>and</strong>”) while the statute is in<br />
the disjunctive (“or”), the defendant should specifically make a plea<br />
agreement in the disjunctive.<br />
An example is, “I admit to entry with intent to commit larceny or any felony.”<br />
(However, if the defendant did not do this, <strong>immigration</strong> counsel will argue, in the context of<br />
conflicting case law, that a plea to a charge in the conjunctive does not necessarily prove the<br />
multiple acts. 76 )<br />
f. Do not permit the defendant to admit extraneous facts that might have a<br />
negative <strong>immigration</strong> effect, <strong>and</strong> that are not required <strong>for</strong> conviction.<br />
Immigration authorities sometimes consider admission of facts not required <strong>for</strong> a<br />
conviction, even though this appears to violate rules governing the categorical analysis. 77<br />
Counsel should assume conservatively that any fact admitted by the defendant may be<br />
considered by <strong>immigration</strong> authorities or a court, although <strong>immigration</strong> counsel may have strong<br />
arguments against this. (Generally, adding additional facts is fine, especially as needed to<br />
provide specificity as a factual basis, as long as the facts do not have <strong>immigration</strong> implications.)<br />
g. In<strong>for</strong>mation from dismissed charges cannot be considered<br />
This would violate the fundamental rule that there must be proof that the allegations in<br />
the charge were pled to. In case of doubt, bargain <strong>for</strong> a new count.<br />
Example: The Ninth Circuit held that although a dropped charge to H&S § 11378(a)<br />
identified methamphetamine as the controlled substance, this in<strong>for</strong>mation could not be<br />
used to hold that the new charge of possession of a “controlled substance” under H&S §<br />
11377(a) involved methamphetamine. Since the substance could not be identified, it was<br />
not possible to prove that it appeared on federal controlled substance lists, <strong>and</strong> the<br />
noncitizen was held not deportable. 78 See § N.8 Controlled Substances.<br />
h. Practice Pointer: Be sure to check the court documents <strong>for</strong> accuracy.<br />
Get a copy of any beneficial documents <strong>for</strong> the defendant<br />
If the defendant is put in removal proceedings, most of the time the government relies on<br />
written documents (the complaint, minute order, abstract of judgment, <strong>and</strong> written waiver <strong>for</strong>m).<br />
Check the minute orders, Abstract of Judgment, <strong>and</strong> any interlineations the clerk puts on any<br />
76 Malta-Espinoza v. Gonzales, supra; see also In re Bushman, (1970) 1 Cal.3d 767, 775 (overruled on other<br />
grounds). However, with no discussion the Ninth Circuit en banc held the opposite in Snellenberger, supra at 701.<br />
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<br />
Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) (defendant convicted of an assault offense that had no<br />
element of use of a firearm was not deportable under the firearms ground, even though he pleaded guilty to an<br />
indictment that alleged he assaulted the victim with a gun).<br />
78 Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079 (9th Cir. 2007). See generally Martinez-Perez v. Gonzales, 417 F.3d<br />
1022 (9th Cir. 2005).<br />
N-48 Immigrant Legal Resource Center