DEFINITION OF TERMS
USC, LPR, Undocumented
In these materials, a United States citizen is referred to as a USC, a
lawful permanent resident (“green card” holder) is referred to as an LPR, and a person with no
current lawful immigration status is referred to as an undocumented person.
Aggravated Felony (AF)
This conviction generally brings the worst immigration consequences. The AF definition at 8 USC § 1101(a)(43) includes twenty-one provisions that describe hundreds of offenses, including some misdemeanors. Some but not all offenses require a sentence imposed of a year or more in order to be an AF. Aggravated felons are deportable and ineligible to apply for most forms of discretionary relief from deportation, including asylum, voluntary departure, and cancellation of removal, and are subject to mandatory detention without bond. A conviction for illegal reentry after removal carries a higher federal prison term based on a prior AF conviction, per 8 USC § 1326(a), (b)(2). See Note: Aggravated Felony and individual offenses in the chart.
Crime of Violence (COV)
A conviction of a COV has two potential immigration penalties. If committed against a person protected under the state’s domestic violence laws, a COV is a deportable Crime of Domestic Violence. See paragraph below on the domestic violence deportation ground, 8 USC § 1227(a)(2)(E). If a sentence of a year or more is imposed, a COV is an aggravated felony, regardless of the type of victim. 8 USC § 1101(a)(43)(F). COV is defined at 18 USC § 16. Recent Supreme Court precedent has changed the legal landscape for that definition, so that some felonies that used to be COVs no longer are.
Crime Involving Moral Turpitude (CIMT)
Whether an offense involves moral turpitude is defined according to federal immigration case law, not state cases. CIMT is notoriously vaguely defined and subject to much litigation. It includes crimes with elements of intent to defraud, intent to cause great bodily injury, and theft with intent to deprive permanently. In also includes some offenses involving lewdness, recklessness, or malice.
A noncitizen is deportable who (a) is convicted of at least two CIMT’s that did not arise out of the same incident, at any time after being admitted to the U.S., or (b) is convicted of one CIMT, committed within five years of admission to the U.S. (or if there was no admission, within five years of adjustment to LPR status), if the offense carries a potential sentence of at least one year. 8 USC § 1227(a)(2)(A). Because Cal PC § 18.5 (effective Jan. 1, 2015) provides that the maximum possible sentence for a misdemeanor is 364 days, any plea to a single misdemeanor CIMT entered after January 1, 2015 should not trigger the deportation ground. When reducing a single CIMT felony to a misdemeanor after January 1, 2015 for a noncitizen defendant, ask the judge to sign an order noting that the misdemeanor has potential 364 days; see paragraph on P.C. § 18.5 below.
A noncitizen is inadmissible if convicted of one CIMT, unless an exception applies. To qualify for the petty offense exception, the person must have committed only one CIMT, which carries a potential sentence of not more than a year, and a sentence of not more than six months must have been imposed. To qualify for the youthful offender exception, the person must have committed only one CIMT, while under age 18, and the conviction (in adult criminal court) or release from imprisonment occurred at least five years ago. 8 USC § 1182(a)(2)(A)(ii).
Controlled Substance Offense (CS)
A noncitizen is deportable and inadmissible if convicted of an offense “relating to” a federally defined controlled substance. There is an exception to the deportation ground, and a possible waiver of inadmissibility, if the conviction/s relate to a single incident involving simple possession, use, or possession of paraphernalia relating to 30 grams or less of marijuana or hashish. See discussion at H&S C § 11377, and see 8 USC § 1227(a)(2)(B)(i) (deportability), 8 USC § 1182(a)(2)(A)(i)(II) (inadmissibility), (h) (waiver). “Controlled substance” is defined according to federal law, and some offenses such as §§ 11377-79 include substances not on the federal list. Due to this disparity, if the specific California substance is not identified on the record, the defendant may have an immigration defense. See Advice for § 11377. A “drug trafficking” aggravated felony, defined at 8 USC § 1101(a)(43)(B), includes trafficking offenses such as sale or possession for sale, as well as state offenses that may not involve trafficking but that are analogues to federal drug felonies. However, in immigration proceedings in the Ninth Circuit only, “offering” to commit these offenses is not an aggravated felony. Even if there is no conviction, a noncitizen is inadmissible if ICE has “reason to believe” he or she has trafficked (8 USC § 1182(a)(C)), and can be deportable and inadmissible for being a drug addict or abuser (8 USC §§ 1182(a)(1), 1227(a)(2)(B)(ii).
Conviction of a Crime of Domestic Violence, of Child Abuse, Neglect or Abandonment, or of
Stalking; Civil or Criminal Court Finding of Violation of a DV Stay-Away Order or Similar Order
These all trigger deportability under the “domestic violence” ground at 8 USC § 1227(a)(2)(E). The conviction, or the conduct that violated the protective order, must have occurred after admission and after Sept. 30, 1996. A crime of domestic violence is a “crime of violence” (see above) against a person protected from the defendant’s acts under state domestic violence laws. A court finding of a violation of a portion of a DV protective order that is meant to protect against threats or repeated harassment causes deportability; this includes even the most minimal violation of a stay away order.
A noncitizen is deportable under 8 USC § 1227(a)(2)(C) who at any time after admission is convicted of an offense relating to a firearm. Also, convictions for sale of firearms, or certain offenses such as being a felon in possession, are aggravated felonies. 8 USC §1101(a)(43)(C). However, no California offense that uses the definition of firearm at PC § 16520(a) carries these consequences, because the California and federal definitions of firearm are different. See Advice for PC § 29800.
Crimes against a Minor that Block Family Visa Petitions
An LPR or USC who is convicted of certain crimes against a minor can be barred from getting lawful status for an immigrant spouse or child (from filing a “family visa petition.”) The crimes include kidnapping, false imprisonment, offenses involving sexual conduct, or child pornography. See Note: Adam Walsh Act and 8 USC §1154(a)(1)(A)(viii).
Minimum Conduct/ Divisible Statutes/ Record of Conviction
One of the most important defense strategies comes from understanding how federal law will analyze a conviction for immigration purposes. This is referred to as the categorical approach, and it applies to almost all removal grounds.
For most removal grounds, a conviction triggers the ground only if the minimum conduct ever prosecuted under the statute (a/k/a the “least act criminalized” by the statute) would do so, without regard to what the individual defendant did or pled guilty to. This is a defendant-friendly rule meant to ensure fairness and judicial efficiency in immigration proceedings.
However, rather than rely on this rule and not create a good individual record, the best practice for a noncitizen defendant is to plead to the specific “safe” minimum conduct rather than, e.g., to the facts in the charge or the statutory language, where that is possible. This is because immigration authorities might misapply the law, and wrongly look to the person’s own conviction record to evaluate the offense. (Many immigrants are unrepresented in removal proceedings and have no one to object to this.) This chart sets out “good” suggested minimum conduct for most offenses.
Example: The minimum conduct required to be guilty of Penal Code § 243(e) is an offensive touching against the victim. That is not a crime of violence, a crime of domestic violence, or a crime involving moral turpitude for immigration purposes. Therefore, no conviction of § 243(e) has these consequences, for purposes of deportability, inadmissibility, or eligibility for relief. This is true even if the defendant pled guilty to more violent conduct. Still, because of the risk that an immigration judge might not apply the minimum conduct rule correctly, best practice is to plead to an offensive touching when that is possible.
There is an important variation on the minimum conduct rule. Some criminal statutes are “divisible” in that they set out distinct multiple offenses, at least one of which triggers a removal ground. If a statute is divisible, an immigration judge is permitted to review certain documents from the individual’s record of conviction, to see of which offense the person was convicted. Then the judge will apply the minimum conduct rule to that offense.
When is a statute divisible? In the Ninth Circuit, it is divisible only if (1) it is phrased in the alternative (using “or”); (2) at least one, but not all, of the alternatives triggers the removal ground; and (3) a jury always must decide unanimously between the alternatives in order to find guilt (this is the definition of an element). For many statutes, the jury unanimity requirement is the key to determining divisibility.
Example: California Vehicle Code § 10851 prohibits taking a vehicle with intent to deprive the owner “permanently or temporarily.” Intent to deprive permanently is a crime involving moral turpitude (CIMT), but temporary intent is not. Is § 10851 divisible as a CIMT?
The Ninth Circuit found that it is not. Section 10851 meets the first two requirements for a divisible statute: it sets out statutory alternatives, at least one but not all of which would trigger the removal ground. But it fails the third requirement, because a jury is not required to decide unanimously between temporary and permanent intent in order to find guilt under § 10851. Because the statute is not divisible, the minimum conduct test applies. The minimum conduct includes a temporary taking (which is not a CIMT), no conviction of § 10851 ever is a CIMT for any immigration purpose. This is true even if the person pled guilty to, or was convicted by jury of, a permanent taking. See Almanza-Arenas v. Lynch, –F.3d– (9th Cir. Dec. 28, 2015) (en banc).
Despite this good rule, the best practice is to make a specific plea to the “good” conduct, e.g. to a temporary taking under § 10851, where that is possible. This is because there is a split among Circuit Courts of Appeals as to whether the jury unanimity rule is required. The Supreme Court may address this issue and conceivably could rule against it. Or, the defendant could end up in removal proceedings in another Circuit that does not apply that rule. A specific plea will protect against these contingencies.
All courts agree that a single word, or a phrase that does not contain “or,” is not divisible even if it covers a wide range of conduct. For example, the Supreme Court held that the word “entry” in Penal Code § 459 is not divisible between lawful and unlawful entry, so that all § 459 convictions must be considered to involve a lawful entry. But if a term has its own statutory definition that does list alternatives separated by “or,” it might be divisible. For example, the Ninth Circuit held that the term “controlled substance” in H&S C § 11377 is divisible, because it is defined by a list of substances in state drug schedules.
Record of Conviction; Inconclusive Record
If a statute is truly divisible, an immigration judge may review a limited set of documents, called the reviewable record of conviction (ROC), to try to discern of which offense the person was convicted. These are the documents defenders will use to create a “good” record. In a conviction by plea, assume that the ROC includes the charge pled to, as amended (not dropped charges); the plea colloquy transcript and, if any, plea agreement; the judgment; and any factual basis for the plea agreed to by the defendant. Watch out for written notations on forms, and information on the Abstract of Judgment that refers to a count, because sometimes these are used.
The ROC does not include the police report, pre-sentence report, or preliminary hearing transcript – unless the defendant stipulates that the document contains a factual basis. To avoid stipulating to any factual basis, see People v. Palmer (2013) 58 Cal.4th 110. If you must stipulate, choose documents that you have identified or created that do not include damaging information, for example a written plea agreement or sanitized complaint. See People v. Holmes (2004) 32 Cal.4th 432.
What if the ROC is inconclusive, for example all of the above documents show only that the § 10851 conviction was for intent to deprive “temporarily or permanently”? Sometimes an inconclusive record can save the day. The benefit of this depends on the immigration context.
Sentence Imposed (“Term of Imprisonment”)
In some but not all cases, sentence imposed is crucial for immigration consequences. Certain offenses become an aggravated felony only if a sentence of a year or more is imposed. Also, a first misdemeanor conviction of a crime involving moral turpitude can come within the “petty offense exception” to the inadmissibility ground only if a sentence of six months or less is imposed. See AF, CIMT, above. For immigration purposes, an imposed sentence includes any sentence to custody, even if execution is suspended. If imposition of sentence is suspended, it includes any period of custody ordered as a condition of probation. If additional custody is added to the original count due to a probation violation, it includes that time. But the sentence must be imposed as a result of a conviction. It does not include pre-hearing custody if the defendant waives credit for time served, and it does not include custody ordered in delinquency proceedings. See 8 USC § 1101(a)(48(B) and Note: Sentence. A slightly different definition of sentence, which excludes suspended sentences, applies for purposes of the “significant misdemeanor” classification in DACA, DAPA, and enforcement priorities.
Under P.C. § 18.5, Misdemeanor has Maximum 364-Day Exposure. As of January 1, 2015, a California misdemeanor that previously was punishable by up to one year of custody instead is punishable by up to 364 days. When changing a felony to a misdemeanor per P.C. §§ 17(b)(3) or 1170.18, depending on the defendant’s case it may be very important to have “P.C. §18.5” or “364 days maximum exposure” noted on the order.