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
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
Victor pleads to § 10851 with a vague record of conviction, reciting the language of the<br />
statute in the disjunctive. Samuel pleads specifically to a temporary taking.<br />
When Victor gets to <strong>immigration</strong> court, the judge decides that since the vague record of<br />
conviction does not establish whether the taking was temporary or permanent, he is<br />
permitted to go beyond the record under Silva-Trevino, just <strong>for</strong> purposes of <strong>determining</strong><br />
whether the offense is a CMT. The judge may examine the probation report, or take<br />
testimony from Victor. Based on evidence there, he can hold that Victor intended a<br />
permanent taking <strong>and</strong> that his conviction is a CMT.<br />
When Samuel <strong>and</strong> his specific record get to the same <strong>immigration</strong> judge, the judge<br />
decides that the moral turpitude question is resolved by the record of conviction: the plea<br />
bargain clearly establishes that Samuel pled guilty to a temporary taking. There<strong>for</strong>e<br />
Silva-Trevino does not permit the judge to go beyond the record, <strong>and</strong> she must end the<br />
inquiry <strong>and</strong> find that Samuel does not have a moral turpitude conviction.<br />
‣ If the <strong>immigration</strong> court does conduct a broad factual inquiry under Silva-Trevino, it may use<br />
the in<strong>for</strong>mation only to determine if the offense involves moral turpitude, <strong>and</strong> not to<br />
determine if the conviction comes within other grounds of inadmissibility or deportability. 98<br />
Example: Mike pleads guilty to P.C. § 243(e), spousal battery. If this offense is<br />
committed with mere “offensive touching,” it is neither a crime involving moral turpitude<br />
(CMT), nor a deportable crime of domestic violence. If instead it is committed with<br />
actual violence, it may be held a CMT <strong>and</strong> a deportable crime of domestic violence. 99<br />
Mike’s defender creates a vague record of conviction in which Mike pleads to the<br />
language of the statute, which does not establish whether the offense involved actual<br />
violence or an offensive touching.<br />
Under Silva-Trevino, the judge may decide to go beyond the vague record that is<br />
reviewable under the modified categorical approach, <strong>and</strong> make a factual inquiry into<br />
Mike’s conduct. The inquiry might lead her to find that real violence was involved <strong>and</strong><br />
the offense is a CMT. However, the judge may not go beyond the reviewable record to<br />
determine whether the conviction comes within another deportability or inadmissibility<br />
ground. For example, the judge must only consider the reviewable record of conviction<br />
when she determines whether the government has met its burden of proving that the<br />
offense is a deportable crime of domestic violence. Since the vague record does not<br />
establish that the offense involved actual violence, she will find that Mike is not<br />
deportable under the domestic violence ground.<br />
98 “This opinion does not, of course, extend beyond the moral turpitude issue--an issue that justifies a departure from<br />
the Taylor/Shepard framework because moral turpitude is a non-element aggravating factor that ‘st<strong>and</strong>s apart from<br />
the elements of the [underlying criminal] offense.’” Matter of Silva-Trevino, 24 I&N Dec. 687, 699, 704 (AG<br />
2008).<br />
99 See discussion of Calif. P.C. § 243(e) <strong>and</strong> Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006), in § N. 9 Domestic<br />
Violence.<br />
N-66 Immigrant Legal Resource Center