quick reference chart and notes for determining immigration - ILRC

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www.ilrc.org/criminal.php CALIFORNIA CODE SECTION OFFENSE AGGRAVATED FELONY H&S §11360 Marijuana - (a) sell, transport, give away, offer to; (b) same for 28.5 gms or less Divisible: Transport, or offer to commit drug offense is not AF. Giving away a CS usually is an AF; however giving away a small amount of mj arguably is not and a first offense to do this might qualify for Lujan benefit. See Note: Drug Offenses CRIME INVOLVING MORAL TURPITUDE-- These findings are questionable Yes CMT as CS trafficking offense (except transport for personal use, and probably giving away a small amount). See Advice re Silva-Trevino OTHER DEPORTABLE, INADMISSIBLE GROUNDS Deportable and inadmissible for CS. First offense give away small amount or offer to give may qualify for Lujan benefit. ADVICE AND COMMENTS See Note "Drug Offense." Transportation for personal use is not an AF but is a deportable and inadmissible drug conviction. Same with offering to commit a drug offense. Sale or offering to sell also makes the person inadmissible by giving gov't "reason to believe" person has been drug trafficker. PC 32 with less than 1 yr prevents agg felony and CS deportability. Giving away a small amount of marijuana might have advantages: may not be an AF, and a first conviction may be treatable under Lujan-Armendariz. Best plea: 1st poss of less than 30 gms marijuana under H&S 11357(b); or any offense relating to an unspecified controlled substance e.g. 11377, because that is not a controlled substance offense. Under Silva-Trevino for CMT purposes only, imm judge may take testimony on transport v. sale. H&S §11364 Possession of drug paraphernalia Not AF (sale of paraphernalia might be). Not CMT Deportable, A first conviction is eliminated through inadmissible for CS withdrawal of plea under DEJ, Prop 36, PC conviction 1203.4 by Lujan-Armendariz. See H&S 11350 and Notes "Drug Offenses" and "Safer Pleas" H&S §11365 Presence where CS is used Not AF. Not CMT Deportable, See advice on H&S 11364 and 11350, and inadmissible for CS Notes "Drug Offenses." Assume that this conviction will be a CS conviction even if specific CS is not ID'd on ROC. First offense might be eliminated by DEJ, 1203.4, etc. under Lujan- Armendariz H&S 11366.5 Maintain Assume this is place where an AF drugs are sold Assume it is CMT Deportable, Try to avoid this plea. See H&S 11379, inadmissible for CS public nuisance offenses. Assume that this conviction will be a CS conviction even if specific CS is not ID'd on ROC. See Note: Drug Offenses H&S §11368 Forged prescription to obtain narcotic drug Assume it is CS AF. Also, forgery with 1-yr sentence is AF. May be divisible as CMT Deportable and inadmissible for CS conviction See advice for H&S 11173. Assume this is AF; better Might be divisible as a CMT since fraud intent not element of forged prescription. Better to plead to poss of a drug plus a separate straight forgery with 364 days or less. In any event, avoid1-yr sentence for forgery; see Note "Sentence." AF = Aggravated Felony COV = Crime of Violence CMT = Crime Involving Moral Turpitude CS = Controlled Substance DV = Domestic Violence ROC = Record of Conviction
www.ilrc.org/criminal.php CALIFORNIA CODE SECTION H&S §11377 OFFENSE Possession of controlled substance AGGRAVATED FELONY See Advice Column here and H&S 11350. CRIME INVOLVING MORAL TURPITUDE-- These findings are questionable Not CMT OTHER DEPORTABLE, INADMISSIBLE GROUNDS ADVICE AND COMMENTS Deportable, See Advice in H&S 11350 re when inadmissible for CS possession with a drug prior is an AF, and conviction -- but when withdrawal of plea eliminates a first see Advice re poss conviction. See 11350 Advice for the having no specific effect when a specific CS is not ID'd on the CS ID'd on the record, which is a disposition that will avoid ROC. all or most consequences. H&S §11378 H&S §11379 Possession for sale CS Sale, give, transport, offer to, controlled substance Yes, unless specific drug not ID'd on ROC. See Ruiz-Vidal and 11377, supra. Divisible: see H&S 11352 and Advice. Yes CMT as CS trafficking offense Divisible, see H&S 11352 and Advice. Deportable, inadmissible for CS conviction, unless specific drug not ID'd on ROC; see 11377 and Ruiz- See H&S 11352. See benefits if specific drug is not ID'd, discussed at 11350 Advice. See advice on H&S 11351 and Note "Drug Offenses." Avoid consequences by not identifying specific CS on the ROC, or better by pleading to transportation or offering in 11379 and not ID'ing specific CS. Divisible statute in that transportation and offering to commit an offense is not an AF, while sale or distribute is. Avoid consequences by not identifying specific CS on the ROC; see 11350, 11352 Advice and Note "Drug Offenses." H&S §11550 Under the influence controlled substance (CS) Under influence not AF. Felony 11550(e) 'with gun' with 1 yr might be AF as COV. Avoid 1 yr or 'with gun.' Not CMT Deportable, For 11550(a)-(c). Not an AF, even with a inadmissible for CS drug prior. While no case on point, it ought conviction, at least to get Lujan-Armendariz benefit and be if specific CS is eliminated by DEJ, 1203.4, Prop 36. Imm ID'd on the ROC. counsel will argue that it is not a CS offense H&S 11550(e) also if specific CS is not ID'd in ROC, but gov't deportable for may oppose. To avoid firearms offense firearms offense. avoid ROC showing 11550(e) is conviction. To avoid threat of felony 11550(e) as Agg Felony, reduce to misd under PC 17 and/or avoid 1-yr sentence. Penal §31 Aid and abet AF if underlying offense is. Yes if underlying offense is Yes if underlying offense is No immigration benefit. However see accessory after the fact PC 32. Penal §32 Accessory after the fact Only if 1 yr sentence imposed. See Advice for preparing ROC. Unclear; currently being litigated. See Note: Safer Pleas Accessory does not take on character of principal offense, so avoids consequences To avoid agg felony, avoid 1 yr sentence imposed. If that is not possible, have record indicate conduct was to help the principal avoid initial arrest, rather than ongoing proceeding; if that is not possible, leave the record open to that possibility. Except for that and the possible CMT, this is an excellent plea to avoid e.g. drug, violence, firearms conviction. For further discussion see Note "Safer Pleas" AF = Aggravated Felony COV = Crime of Violence CMT = Crime Involving Moral Turpitude CS = Controlled Substance DV = Domestic Violence ROC = Record of Conviction
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