quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 imposed” was less than six months, the person is automatically not inadmissible for moral turpitude. Example: Freia is convicted of felony grand theft, the only CMT offense she’s ever committed. (She also has been convicted of drunk driving, but as a non-CMT that does not affect this analysis.) The conviction is reduced to a misdemeanor under PC § 17. 102 The judge gives her three years probation, suspends imposition of sentence, and orders her to spend one month in jail as a condition of probation. She is released after 15 days. Freia comes within the petty offense exception. She has committed only one CMT, it has a potential sentence of a year or less, and the sentence imposed was one month. (For more information on sentences, see § N.4.) Youthful offender exception. 103 A disposition in juvenile delinquency proceedings is not a conviction and has no relevance to moral turpitude determinations. But persons who were convicted as adults for acts they committed while under the age of 18 can benefit from the youthful offender exception. A noncitizen who committed only one CMT ever, and while under the age of 18, ceases to be inadmissible as soon as five years have passed since the conviction or release from resulting imprisonment. Example: Raoul was convicted as an adult for felony assault with a deadly weapon, based on an incident that took place when he was 17. He was sentenced to eight months and was released from imprisonment when he was 19 years old. He now is 24 years old. Unless and until he is convicted of another moral turpitude offense, he is not inadmissible for moral turpitude. Inadmissible for making a formal admission of a crime involving moral turpitude. This ground does not often come up in practice. A noncitizen who makes a formal 104 admission to officials of all of the elements of a CMT is inadmissible even if there is no conviction. This does not apply if the case was brought to criminal court but resolved in a disposition that is less than a conviction (e.g., charges dropped, conviction vacated). 105 Counsel should avoid having clients formally admit to offenses that are not charged with. 102 Reducing a felony to a misdemeanor will give the offense a maximum possible sentence of one year for purposes of the petty offense exception. LaFarga v. INS, 170 F.3d 1213 (9 th Cir 1999). 103 8 USC § 1182(a)(2)(A)(ii)(I). 104 105 See, e.g., Matter of CYC, 3 I&N Dec. 623 (BIA 1950) (dismissal of charges overcomes independent admission) and discussion in § 4.4, supra. Immigrant Legal Resource Center N-69
California Quick Reference Chart and Notes February 2010 § N.8 Controlled Substances (For more information, see Defending Immigrants in the Ninth Circuit, Chapter 3, www.ilrc.org/criminal.php) A. Overview of Penalties for Drug Offenses B. Key Defense Strategies: Create a Record that Does Not Specify the Controlled Substance; Plead to Accessory After the Fact 1. Create a Record that Does Not Specify the Controlled Substance 2. Plead to Accessory after the Fact C. Simple Possession or Less D. Sale and Other Offenses beyond Possession E. “Conduct-Based Grounds: Formal admission of an Offense, Being an Addict or Abuser, and the Government has “Reason to Believe” the Noncitizen was involved with Trafficking F. Quick Reference Chart for Effect of Pleas: Ninth Circuit Law under Lopez v. Gonzalez Chart on Immigration Consequences of Drug Pleas. Following this Note is a one-page Chart that summarizes advice for pleading to California drug offenses. It may be helpful to take the Chart to court or check it as you read this chapter. 106 A. Overview of Penalties for Drug Offenses Aggravated felony. Under 8 USC § 1101(a)(43)(B), a controlled substance offense can be a “drug trafficking” aggravated felony in either of two ways: (1) if it is an offense that meets the general definition of trafficking, such as sale or possession for sale, or (2) if it is a state offense that is analogous to certain federal felony drug offenses, even those that do not involve trafficking, such as simple possession, cultivation, or some prescription offenses. Case law has established that a state possession conviction with no prior drug convictions is not an aggravated felony, unless it is possession of flunitrazepam or 5 grams or more of crack cocaine. For information as to when a state possession conviction with a drug prior might be held an aggravated felony, see Part C. Deportability grounds. Conviction of any offense “relating to” controlled substances, or attempt or conspiracy to commit such an offense, causes deportability under 8 USC § 1227(a)(2)(B)(i). A noncitizen who has been a drug addict or abuser since admission to the United States is deportable under 8 USC § 1227(a)(2)(B)(ii), regardless of whether there is a conviction. 106 This Note and the Controlled Substances Chart following it were updated in June 2010 to reflect the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (June 14, 2010), that a prior drug conviction does not cause a subsequent simple possession conviction to be an aggravated felony if the court does not make a formal finding of the prior conviction. N-70 Immigrant Legal Resource Center
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