quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 3. If the above suggestions are not possible, counsel should carefully craft a written plea agreement or amended charge, and stipulate to that as the factual basis. Under People v. Holmes, defense counsel may stipulate to any of several listed documents. 83 Strategically, counsel should stipulate only to the complaint (which counsel may move to amend) or a written plea agreement, because these documents give counsel the necessary control over the record of conviction to avoid immigration consequences. Defense counsel also can stipulate to a specific portion of a given document that does not contain damaging facts against the defendant, e.g. the concluding paragraph of the police report dated “x” on p. 2 that reads “…” Counsel may have to negotiate exactly how much and what kind of detail is provided. Recently a California appellate court held inadequate a stipulation to a charge that repeated the language of the statute, with no additional information beyond the names of the defendant and victim. 84 If there is an objection to using a charge or plea agreement that tracks the statute as the factual basis for the plea, counsel can amend the document to provide additional details of the kind that will not adversely affect the immigration case; it may be possible to highlight specific facts that are beneficial to the case. It is a good idea to work closely with an immigration expert on this wording. Where a statute is divisible, counsel may plead the defendant to the safer option under the statute, or if that is not possible to the statute in the disjunctive (using “or” rather than “and”). Counsel should ensure that the factual basis for the plea also follows this course: either the safer option under the statute, or at least in the disjunctive, or otherwise vaguely stated. For example, a statement that “On x date I did sell or transport …” (to avoid an aggravated felony drug conviction) or “On x date I used a dangerous weapon” (without identifying the weapon as a firearm, if that is what must be avoided).” Note that a factual basis for the plea can be stipulated to at sentencing rather than plea. See People v. Coulter, 163 Cal. App. 4th 1117, 1122 (Cal. App. 2d Dist. 2008). For additional information, see discussion at Chapter 2, § 2.11(C)(6), Defending Immigrants in the Ninth Circuit at www.ilrc.org. 83 People v. Holmes, 32 Cal. 4th at 436. 84 People v. Willard, 154 Cal. App. 4th 1329, 1335 (Cal. Ct. App. 2007). The court noted, “The complaint alleged the date of the conduct and the names of defendant and the victim. The remainder of the complaint was in the language of the statute. The statutory language set forth the elements of the offense, not facts. This was not enough to satisfy the purpose of the factual basis inquiry, to corroborate what defendant had already admitted by his plea.” Immigrant Legal Resource Center N-51
California Quick Reference Chart and Notes February 2010 § N.4 Sentence Solutions (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 5, www.ilrc.org/criminal.php) A. The Immigration Definition of Sentence B. Aggravated Felonies and Sentence C. The Petty Offense Exception to the Moral Turpitude Inadmissibility Ground and Sentence A. The Immigration Definition of Sentenced to a Term of Imprisonment The immigration statute defines the term of imprisonment of a sentence as the “period of incarceration or confinement ordered by a court of law, regardless of suspension of the imposition or execution of that imprisonment in whole or in part.” 85 This concept comes up frequently because several types of offenses only will become aggravated felonies if a sentence of a year or more has been imposed. See Part B, infra. See also discussion of the moral turpitude inadmissibility ground, at Part C, infra. The good news is that there are many strategies to create a sentence that meets the demands of the prosecution and is an acceptable immigration outcome, especially in avoiding the one-year cut-off for an aggravated felony. The following are characteristics of the immigration definition of a sentence to imprisonment. • This definition refers to the sentence actually imposed, not to potential sentence or to time served. • It does not include the period of probation or parole. • It includes the entire sentence imposed even if all or part of the execution of the sentence has been suspended. Where imposition of suspension is suspended, it includes any period of jail time ordered by a judge as a condition of probation. Example: The judge imposes a sentence of two years but suspends execution of all but 13 months. For immigration purposes the “sentence imposed” was two years. Example: The judge suspends imposition of sentence and orders three years probation, with eight months of custody ordered as a condition of probation. The immigration sentence imposed is eight months. 85 Definition of “term of imprisonment” at INA § 101(a)(48)(B), 8 USC § 1101(a)(48)(B). N-52 Immigrant Legal Resource Center
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