quick reference chart and notes for determining immigration - ILRC

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