quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 • Counterfeiting • Forgery • Trafficking in vehicles which have had their VIN numbers altered • Obstruction of justice • Perjury, subornation of perjury • Falsifying documents or trafficking in false documents (with an exception for a first offense for which the alien affirmatively shows that the offense was committed for the purpose of assisting, abetting, or aiding only the alien’s spouse, child or parent) Even a misdemeanor offense with a suspended one-year sentence imposed is an aggravated felony. Note that many other offenses are aggravated felonies regardless of sentence imposed. Obtaining a sentence of 364 days or less will not prevent these offenses from being classed as aggravated felonies. This includes commonly prosecuted aggravated felony categories such as drug trafficking offenses, firearms offenses (which includes trafficking and felon in possession of a firearm), sexual abuse of a minor, rape, and a crime of fraud or deceit where the loss to the victim/s exceeds $10,000. C. “Sentence Imposed” as Part of the Petty Offense Exception to the Moral Turpitude Ground of Inadmissibility. The above definition of “sentence imposed” also applies to persons attempting to qualify for the petty offense exception to the moral turpitude ground of inadmissibility, which holds that a person who has committed only one crime involving moral turpitude is not inadmissible if the offense has a maximum possible one-year sentence and a sentence imposed of six months or less. 90 See Note: Crimes Involving Moral Turpitude, infra. Example: Michelle is convicted of grand theft, reduced to a misdemeanor. This is her first conviction of a crime involving moral turpitude. She is sentenced to three years probation with 20 days jail as a condition of probation. She comes within the petty offense exception to the inadmissibility (not deportability) ground: the conviction has a potential sentence of not more than one year; her sentence imposed was 20 days, which is less than six months; and she has not committed another crime involving moral turpitude. 90 See 8 USC § 1182(a)(2)(A)(ii)(II). Immigrant Legal Resource Center N-55
California Quick Reference Chart and Notes February 2010 § N.5 Immigration Holds and Immigration Detention; When to Obtain Release from Criminal Incarceration, and When Not To By Michael K. Mehr and Katherine Brady For more information about immigration holds/detainers, and state enforcement of immigration laws, see Defending Immigrants in the Ninth Circuit, Chapter 12 A. Immigration Hold Once ICE becomes aware of a suspected deportable alien, through notification by local authorities or through its own investigatory processes and periodic visits to local jails and prisons, it may file an immigration “hold” or “detainer” (which we will refer to as an immigration “hold”) with the local, state, or federal law enforcement agencies who have custody of the person. The regulation governing immigration holds/detainers is 8 CFR 287.7. The regulation provides that an immigration hold is a request that another Federal, State or local law enforcement agency notify INS prior to release of an alien in order for INS to arrange to assume custody for the purpose of arresting and removing the alien. The request is for a limited time only: Upon a determination by the Service to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period of not to exceed 48 hours, excluding Saturday, Sundays, and holidays 91 in order to permit assumption of custody by the Service. B. Strategies for Aliens Awaiting Trial 1. Where there is not yet an immigration hold/detainer; Who is subject to a detainer The first thing a criminal practitioner should do when he finds out that his client is an alien and is in custody is to attempt to have that person released on recognizance or bail before any hold or detainer is placed. When a defense attorney speaks with the defendant in custody the defendant should also be advised that he or she has a right to remain silent in the face of any interrogation by ICE or border patrol and that he or she should particularly be advised not to answer any questions concerning place of birth. Once an alien discloses that he or she is born outside the United States, it is the alien’s burden under immigration law to prove that he or she has lawful immigrant or non-immigrant status in the United States. 92 91 Form I-247 indicates that “holidays” means Federal holidays. 92 INS v. Lopez-Mendoza, 468 U.S. 1032, 82 L.Ed. 2d 778, 104 S.Ct. 3479 (1984). See also § 1.1, supra, regarding initial warnings. N-56 Immigrant Legal Resource Center
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