| Code Section | Offense | Aggravated Felony (AF) | Crime Involving Moral Turpitude (CIMT) | Other Removal Grounds | Advice and Comments | |
|---|---|---|---|---|---|---|
| B&P C 4324 | (a) Forge prescription for any drug | AF CS: May be a good alternative to avoid an AF as CS. Avoid 1 year or more imposed on any single count. See Advice. | May be divisible as CIMT. Assume forgery (a) is CIMT, but possessing the drug (b) might not be because generally unlawful possession of a CS is not a CIMT. | Should not be a conviction of a CS offense. The term “drug” is overbroad because it includes noncontrolled substances (CS), and is not a divisible term. See discussion and other options at 11377. |
Drug AF: Good alternative to H&S C 11173, 11368, as a non-CS offense and a non-AF. A state offense is a drug trafficking AF if it is analogous to certain federal drug felonies. This is not an analogue to 21 USC 843(a)(3) because it does not have a CS as an element (see column to the left). But where possible, best practice is to sanitize ROC of mention of a specific CS. Forgery AF: “Forgery” is an AF if 1 year or more is imposed. Assume (a) meets the AF definition of forgery. Imm counsel can investigate arguments that (b) does not.1An offense “relating to” forgery is an aggravated felony if a sentence of a year or more is imposed. 8 USC § 1101(a)(43)(R). Immigration counsel can investigate defenses to (b), possession of a drug obtained by a forged prescription, based on the fact that the Ninth Circuit has held that the “relating to” language cannot be over-extended and that forgery requires possession of a forged instrument. Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 876 (9th Cir 2008). Section (b) requires only possession of the drug obtained with a forged instrument, and not possession of the instrument itself. On its face, it does not require that the defendant knew that the drug had been obtained by forgery. But crim defense counsel should act conservatively and obtain 364 days or less in all cases | 30 |
| B&P C 7028(a)(1) | Contractor without a license | Not AF | Should not be a CIMT because it’s a regulatory offense. See B&P C 25658. | No | 40 | |
| B&P C 25658(a) | Selling, giving liquor to a person under age 21 | Not AF. | Not CIMT because regulatory offense.2This is a regulatory offense, and many state laws include exceptions permitting persons under age 21 to buy or use alcohol, for example with parents’ permission or at a college event. “Violations of liquor laws do not involve moral turpitude, and we do not believe [convictions for selling liquor to a minor] would be deportable offenses.” Matter of P, 2 I&N Dec. 117, 120-21 (BIA 1944) (dictum). In Matter of V. T., 2 I&N Dec. 213, 216-17 (BIA 1944), the BIA, in viewing the California offense of contributing to the delinquency of a minor, listed various California convictions under that law which would not involve moral turpitude, including a conviction for selling or serving intoxicating liquor to a minor. | Cannot be deportable crime of child abuse because not “abuse” and V under 18 is not an element. See Advice. |
Great alternative to providing CS to a minor, if obtainable. Not child abuse, which applies to V’s under 18, not 21. Statute is not divisible as to age of V. But to prevent a mistaken charge, keep CS and V under 18 out of ROC. | 50 |
| B&P C 25662 | Possession, purchase, or use of liquor by a minor | Not AF. | Not CIMT | Not a removal ground per se, but see Advice re inadmissible for alcoholism |
Multiple convictions might be evidence of alcoholism, which is medical inadmissibility ground (8 USC 1182(a)(1)) and a bar to “good moral character.” | 60 |
| Health & Safety C 11173(a), (b), (c) | Obtain CS by fraud | AF CS. Assume it is an AF, but see Advice AF Forgery: Should not be AF as forgery unless false document is used and 1 yr imposed on a single count. | Yes CIMT, except that (d), affixing a false label, might not be. | Assume a deportable and inadmissible CS offense but see Advice. | Health & Safety C 11173(a), (b), (c) AF. May be AF as analogue to 21 USC 843(a)(3) (obtain CS by deceit), although imm counsel may identify defense arguments. The “non-federal controlled substance” defenses may apply here. See Advice at 11350, and a more comprehensive discussion and instructions at 11377. If that is successful, the conviction is not an AF or CS offense. A much better plea is B&P C 4324 (with less than 1 year sentence). If that is not possible, see PC 372.5, possession H&S 11377 plus other distinct offense such as 529(a)(3), 530.5(a), PC 32, or if necessary forgery, fraud.
| 70 |
| H&S C 11350(a), (b) | Possess controlled substance | Not an AF, except for the below exceptions. Possession of a CS is an AF if (a) it is possession of flunitrazepam or (b) it is a second offense, where the first possession was pled or proved for a recidivist sentence enhancement. | Not a CIMT. | Deportable and inadmissible CS offense. But see Advice regarding PC 372.5 and other defenses, which are set out at 11377. There is an argument but no precedent that a California conviction involving heroin is not a conviction of a CS offense. See Advice | H&S C 11350(a), (b). Information for all charges, 11350-11352. See also ILRC, How to Defend Immigrants Charged with Drug Offenses (2023). See Advice to 11377, below, for further discussion of the following defenses: 1. Plead to any immigration-neutral (or at least less bad) non-drug offense. 2. Take pre-trial diversion, PC 1000, if D is likely to complete it 3. Plead to a specific non-federal substance, e.g., chorionic gonadotropin (11377-79).
4. A controlled substance (CS) that appears on both federal and state drug schedules, but that is defined more broadly under state law, is not a federally-defined CS for immigration purposes. Defenders should not rely on this defense until there is case precedent on the California substance at issue, but immigration advocates can assert these arguments for clients who already have such convictions. For convictions from on or after November 9, 2016, marijuana as defined under California law arguably is not a federal CS. See ILRC, Template Brief on Why California Cannabis Convictions from On or After November 9, 2016 are not Grounds for Removal (2024). Arguably meth and heroin as defined under California law are not federally defined substances. See further discussion at 11377, below. 5. Plead to PC 372.5 (2023) or, with less than a year imposed, PC32. These should not be convictions of a CS offense, an AF, or CIMT. But these are better for LPRs contesting deportability, as ICE may pressure the person to admit the underlying conduct, which potentially could trigger inadmissibility and ineligibility for relief (but not deportability). See Advice to PC 372.5. 6. Less secure defense for LPRs: An older defense was to create a record of conviction that does not name any CS, referring throughout to “a controlled substance” rather than, e.g., “morphine.” Since the 2021 decision in Pereida, however, this only helps LPRs to contest deportability, and even that is not secure. Any of the other options are better, but if they are not available this one is worthwhile for LPRs. 7. Potential defense: Might D be a victim of human trafficking or domestic violence who is committing a drug offense under coercion? Coercion can mean under direct orders (e.g., to sell drugs) or coercion arising from the victimization, without orders (e.g., taking drugs in response to pain or despair). This could be a defense to a current charge; a vacatur for a prior conviction; and/or a possible path to legal status. Even if this is unlikely to succeed as a full defense to a charge, good evidence and a potential defense may improve plea bargaining. 8. Eliminate a prior drug conviction with PCR. Additional PCR exists for minor drug offenses. See ILRC, Overview of California Post-Conviction Relief for Immigrants (2022). | 80 |
| H&S C 11351 | Possess CS for sale | AF unless a non-federal substance defense applies. For immigration purposes, even a plea to offering to sell at 11352 is far better. | CIMT, like any trafficking offense. | Deportable and inadmissible CS offense unless a non-federal substance defense applies. See Advice. |
See further discussion at 11378 and see ILRC, How to Defend Immigrants Charged with a Drug Offense (2023). Avoid an AF: Do not plead to 11351. Instead, try any of the defenses listed at Advice for 11350, above which are further discussed at Advice for 11377, below. If no other defense is possible, plead up to 11352, offering to distribute. This is a deportable and inadmissible CS offense, but at least it is not an AF in immigration proceedings held within the Ninth Circuit only. In fact, recommending a plea to 11351 without advising about the advantage of pleading up to “offering” under 11352 has been held ineffective assistance of counsel.3See People v. Bautista, (2004) 115 Cal.App.4th 229; see also In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (where defendant was a noncitizen, failure to advise and consider pleading up from § 11359 to § 11360 was ineffective assistance of counsel). Based on this, consider post-conviction relief to eliminate any prior 11351 conviction. | 90 |
| H&S C 11351.5 | Possess cocaine base for sale | Yes AF | CIMT | Deportable, inadmissible for CS conviction and inadmissible because gov’t has “reason to believe trafficking. See 11379. |
Very bad immigration plea. 11351.5 is even worse than 11351 in that there is no non-federal substance defense. Careful plea to 11352 is better. See discussion of those defenses at 11379. | 100 |
| H&S C 11352(a) | -Sell, give away, or transport for sale (1/1/14) or personal use (pre-1/1/14) | Divisible as AF. Pre-1/1/14 transport is never an AF. In Ninth Cir only, offering to commit an offense is not an AF. All other conduct is an AF. | CIMT, except for pre-1/1/14 transport. | Deportable and inadmissible for CS conviction, and in some cases inadmissible for reason to believe trafficking. See Advice for alternatives. |
See further discussion at 11379 and see ILRC, How to Defend Immigrants Charged with Drug Offenses (2023). See advice for 11350. Better alternatives are listed at Advice to 11350, above, and discussed further at Advice to 11377, below. Please review these before accepting a plea to 11352. If you must plead to 11352, a plea to “offering to” distribute (or offering to sell) will be a CS and a CIMT – but in immigration proceedings held within the Ninth Circuit only, it will not be an AF.4See, e.g., U.S. v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc) and see US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc), holding that §§ 11350-52, 11377, are divisible between the offense (an AF) and “offering to” commit the offense (not an AF). | 110 |
| H&S C 11358 (Analysis is not changed by Prop 64) | Plants, cultivates, harvests, dries, etc. cannabis plants | This is a bad plea–but see Advice for options and for the argument that the California definition of cannabis is broader than the federal definition of marijuana. | Not CIMT because no intent to sell or distribute | Assume deportable and inadmissible for CS conviction, although see Advice. Consider alternatives such as PC 32, 592, etc. at Advice. |
Avoid this plea because the offense – even for personal use — has been held to be analogous to a federal “aggravated felony.” There are arguments against this, below, but they are not guaranteed to win. Argument. Arguably no California cannabis conviction from on or after November 9, 2016 is a controlled substance offense or drug trafficking aggravated felony for immigration purposes, because as of that date Prop 64 defined California “cannabis” more broadly than the federal definition of “marijuana.” See discussion at Advice at current 11357(a)(2). Under that argument, 11358 is not a controlled substance or aggravated felony conviction. Infraction. Conservatively assume even a California infraction in adult (not juvenile) court is a “conviction” for imm purposes because some officers are treating it as such, arguably in error. If it is held a conviction, this could have the absurd result that an 11358(b) infraction is an “aggravated felony.” AF: Plead to a non-drug crime, e.g., PC 32 or 136.1(b)(1) with less than 1 yr, 460(a), (b), 592 theft of water by fraud (wobbler), 594, disposing hazardous waste, or other offenses. (If necessary and if D’s immigration case can survive it, plead to possession per 11357(b), or to 11377 with an unspecified substance. See 11377.) Or, take PC 1000 if D is a good candidate. Success will mean no conviction or admission of a controlled substance offense. See 11377. If D is a refugee, asylee, or potential applicant for asylum, see Advice about trafficking at 11360, below. Victims of human trafficking or domestic or sexual violence. Some people who work as laborers unlawfully growing mj, or in any other unlawful work (mules, drug dealers, sex workers, etc.), are victims of human trafficking and are committing crimes under duress – coerced either by the trafficker or as a direct result of their victimization (e.g., taking drugs due to despair). This could support a criminal defense to charges and/or a vehicle to obtain post-conviction relief for a prior conviction. In 2022, the trafficking defense and vacatur were extended to survivors of intimate partner violence or sexual violence who were coerced to commit crimes. This creates possibilities for the large population of defendants who are victims of domestic violence. D also might be eligible to apply for lawful immigration status, with a T visa, a U visa, or relief under VAWA. If a defendant might benefit from one of these options, see further discussion at ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022), and see this endnote for basic information and free resources to assist in representation.6Survivors of trafficking, or of intimate partner or sexual violence. California has passed laws to protect criminal defendants who are survivors of human trafficking (HR) or, as of 2022, of intimate partner or sexual violence (DV), if they are found to have committed the crime/s as a direct result of their victimization. These defendants might be eligible for immigration status as well, either for a “T visa” as victims of trafficking or a “U visa” or VAWA relief as victims of domestic violence. See resources at the end of this endnote. | 160 |
| H&S C 11359 (Analysis is not changed by Prop 64) | Possess cannabis for sale | Yes AF, without exception, but see Advice | Yes CIMT. | Deportable and inadmissible CS offense but see Advice. |
Argument. This plea should be avoided but see Advice at current 11357(a)(2) for an argument that California cannabis is not a controlled substance for imm purposes, which would defeat the AF and CS charge. This would apply to convictions on or after 11/9/16 and arguably to some earlier ones that are re-designated under Prop 64 provisions. Bad plea. Consider options, defenses, in Advice to 11358, 11360. Assuming arguendo that the substance matches the federal definition of marijuana, then 11359 is an automatic aggravated felony, while parts of 11360 are not aggravated felonies. Seek post-conviction relief for a prior conviction. Advising a noncitizen to plead to 11359 without advisal re 11360 is ineffective assistance of counsel.7See People v. Bautista, (2004) 115 Cal.App.4th 229; see also In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (where defendant was a noncitizen, failure to advise and consider pleading up from § 11359 to § 11360 was ineffective assistance of counsel). | 170 |
| H&S C 11360 (Analysis is not changed by Prop 64) | Unlawfully sell, import, give away, administer, or (since 1/1/16) transport marijuana for sale | Divisible. | CIMT: Sale, transport for sale, offering to do these is a CIMT. | Yes, deportable and inadmissible CS offenses. To avoid, consider 11377 or 11379 with a non-federal substance defense, if possible. The best option is to plead to a non-drug offense. |
Argument. This plea should be avoided but see Advice at current 11357(a)(2) for an argument that California cannabis is not a controlled substance for imm purposes, which would defeat AF and CS charges. This would apply to convictions on or after 11/9/16 and arguably to some earlier ones that are re-designated under Prop 64 provisions Giving away mj. For discussion and citations, see endnote.8Not an aggravated felony. Generally, distributing a controlled substance is a felony under federal law and therefore is an aggravated felony under 8 USC § 1101(a)(43)(B). However, 21 USC § 841(b)(4) provides that “any person who violates [the statute] by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor. This means that the offense is a federal misdemeanor and therefore is not an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184, 193-99 (2013).
Refugees, asylees, and trafficking: Almost any drug trafficking conviction is a “particularly serious crime,” bad for asylees, refugees. See § N.17 Immigration Relief Toolkit. Imm advocates will argue that sale of very small amount of mj may not fit this rule. Any sale also makes D inadmissible by giving gov’t “reason to believe” D participated in trafficking—a very bad ground. See § N.8 Controlled Substance. Giving a small amount of mj away, pre-1/1/16 transportation (with no admission of intent to sell) or offering to commit those offenses may help avoid the above trafficking consequences—but possession is far safer. See 11379. | 180 |
| H&S C 11364 | Possess drug paraphernalia | Not AF. | Not CIMT | Deportable and inadmissible CS conviction. Consider B&P C 4140 instead. |
See Advice to 11377 and see § N.8 Controlled Substance. 1. Try hard to plead to a non-drug offense. Even the most minor drug offense can have catastrophic immigration effect. 2. Take PC 1000 pretrial diversion if D can complete it. 3. Consider PC 32 or 372.5, alternative to drug pleas. 4. Marijuana. While 11364 technically might not apply to cannabis, it sometimes has been used. For past convictions, a first conviction for possessing paraphernalia relating to marijuana would qualify for the advantages of first possession of 30 grams 9Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). (although 11364 technically does not extend to mj.) See H&S C 11357(a) (current) for information on that, as well as on an argument that California cannabis is not a controlled substance for imm purposes. 5. Consider post-conviction relief for prior cases. This includes PC 1203.43 treatment for prior DEJ pleas; Lujan-Armendariz treatment for a minor conviction from before 7/15/11; PC 1473.7, and several other California vehicles. See 11377 and materials at www.ilrc.org/immigrant-post-conviction-relief | 190 |
| H&S C 11365 | Aid/Abet use of CS (Presence where CS is used) | Not AF | Not CIMT | Deportable and inadmissible CS conviction unless non-federal substance defense. |
See Advice at 11364. The non-federal substance defenses may be available for 11365, but 11377 is best choice for this defense; see 11377. | 200 |
| H&S C 11366, 11366.5(a) | Open, maintain, manage place where drugs are sold, distributed, used | 11366 is AF as a federal analogue.10Section 11366 was held an AF as a federal analogue to 21 USC § 1856 in Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006), but see the dissent by Judge Pregerson. Note that the case did not discuss whether § 11366 reaches substances that are not on federal drug schedules. Immigration advocates can investigate this defense. See discussion of requirement of a federally defined controlled substance in Mellouli v. Lynch, 135 S. Ct. 1980 (2015). | Yes CIMT, except managing a place where drugs are used might not be. | Inadmissible and deportable CS. |
This is a bad plea. See H&S 11377, 11379 (“offering”), public nuisance offenses, e.g., PC 370, disposal of hazardous waste, instead. The “unspecified controlled substance defense” may apply to 11366.5, although 11377, 11379 is a better vehicle. Imm advocates may investigate whether this defense also applies to 11366. See instructions at 11377. | 210 |
| H&S C 11368 | Forged prescription to obtain narcotic drug | Assume AF as federal drug analogue but see Advice re possession. | Assume CIMT, except maybe not if possession only. | Deportable and inadmissible CS offense, unless PC 1000/DEJ solution. See Advice. |
AF. Obtain or acquire CS by fraud is an AF as analogue to 21 USC 843(a)(3). (If possessing a drug acquired by fraud is punishable under 11368 but not punishable under 843(a)(3), then 11368 may not be an AF.) Try to plead to B&P C 4342, which is not a CS offense. Or plead to simple possession plus another offense such as 529(a)(3), 530.5, PC 32, fraud, or (with 364 days or less imposed) forgery. PC 1000/DEJ. 11368 is eligible for current pretrial diversion and prior DEJ if drug was obtained by fictitious prescription for use only by D. If D can complete the program, consider pretrial diversion. If D completed or can complete prior DEJ, use PC 1203.43 to eliminate the DEJ “conviction.” See 11377. | 220 |
| H&S C 11370.1 | Possess CS while armed with firearm | Not AF (no federal analogue) | Arguably not a CIMT; see Advice | Yes, deportable and inadmissible CS offense unless one can plead to a non-federal substance. See discussion of the possible advantage of pleading to meth at Advice. Not a deportable firearms offense. See Advice. |
CIMT. Possessing either a CS or a firearm is not a CIMT, so together arguably they are not. CS. All substances listed in 11370.1 are on federal schedules. But note two precedent decisions by federal district courts holding that meth as defined under California law does not meet the definition of a federal CS. See discussion of U.S. v. Verdugo and U.S. v. Morales-Rodriguez at 11377, below. If D cannot avoid pleading to 11370.1, the best option is to designate meth. Firearm. Not a deportable firearms offense because it comes within antique firearm exception; see PC 29800(a). | 230 |
| H&S C 11378 H&S C 11351 uses same analysis | Possess for sale any of several controlled substances (CS) that are defined by California statute. Very bad plea. | Yes, automatic AF, except see 11377 regarding the non-federal substance defenses. But even with such a defense, the best course is to pursue strategies discussed at 11377, including: pleading instead to a non-drug offense, even a serious one; pleading to PC 372.5 (or PC 32 with a sentence of 364 days or less), if the client can survive that (it is easier for an LPR than an undocumented person to use 372.5 or 32); plead to a specific non-federally defined substance; plead down to 11377 if the client can survive that, or seek diversion. If none of this is possible, D should consider pleading up to 11379 offer to give away (or if necessary, offer to sell). This is a deportable and inadmissible CS conviction, but at least it is not an AF in immigration proceedings arising within the Ninth Circuit only. (If D ends up in immigration proceedings outside the Ninth Circuit, this will be an AF.) Pleading up is counter-intuitive but may be necessary for an immigrant D who wishes to remain in the U.S.—especially if the person is an LPR. It has been held ineffective assistance of counsel to fail to advise and consider the 11352/11360/11379 option, rather than 11351/11358-11359/11378 for a noncitizen D.11See discussion in People v. Bautista, (2004) 115 Cal.App.4th 229, In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (if defendant is a noncitizen, failure to advise and consider pleading up from § 11378 to § 11379 is ineffective assistance of counsel). See discussion at § 11379 of benefits to pleading to that offense. (For that reason, it may not be that difficult to vacate a prior 11351/11358-11359/11378 conviction.) | Yes CIMT. Note that the non-federal substance defenses do not appear prevent a CIMT. See 11377, Part 3. | Other removal grounds: Yes, deportable and inadmissible CS offense, unless a non-federal substance defense applies. See 11377. But best option is to use the defense with a plea to 11377 or 11379/offering, not 11378, or better yet, to plead to a non-drug offense. Yes, inadmissible for reason to believe trafficking. Because this is a fact-based inquiry that can use evidence from outside the ROC, this ground may apply even to a conviction protected by a non-federal substance defense, or if the conviction has been vacated. If the facts of the offense show offering to give a CS away for free, it is not necessarily reason to believe “trafficking.” | Defense strategies: As with other drug offenses, counsel should try hard to plead to a non-drug offense (or, if D is likely able to complete it, to PC 1000 pretrial diversion); to simple possession if D can survive that; or to PC 372.5 or PC 32 (with a sentence of 364 days or less – but see PC 32 advice on CIMT risks) ; or to a specific non-federal CS, although this may still be a CIMT. See discussion at 11377 and at ILRC, How to Defend Immigrants Charged with Drug Offenses, including New PC 372.5 (Jan 2023). Also consider alternative pleas such as H&S C 11391, 25189.5, 459, or B&P C 4141 (sale of syringe). If none of these are possible, plead up specifically to “offering to” distribute (or sell), 11351 or 11379, which at least is not an AF in immigration proceedings within the Ninth Circuit; see above. Refugee and Asylees: Conviction of a trafficking offense like possession for sale is a ‘particularly serious crime,’ extremely bad for asylees, refugees, and applicants for asylum. See 11379 and see § N.17 Immigration Relief Toolkit. | 232 |
| H&S C 11379 H&S C 11352(a) uses same analysis | H&S C 11379 Note that H&S C 11352(a) uses same analysis. Includes sell, give away, transport for sale (1/1/14 statute), transport for personal use (pre-1/1/14 statute)—OR—or offering to do such conduct, with any of several controlled substances (CS) that are defined by California statute. Review the several possible defenses to a CS charge at Advice to 11377, above, before pleading to this charge. If there is no alternative, consider the following. | Divisible. Sections 11352 and 11379 are divisible in two ways: the verb and the substance. Regarding the verb, if you cannot avoid this offense, always plead specifically to “offering” to give away (or if needed, to sell or transport). Specify “offering” rather than leaving the record vague, because the statute is divisible in this regard. Offering is not an aggravated felony for any immigration purpose, although only in immigration proceedings arising within the Ninth Circuit.12See U.S. v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc) and see US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc) (holding that the California statutes are divisible between the offense and “offering to” commit the offense). (Meaning, if the person ends up in immigration proceedings outside the Ninth Circuit, offering will be an AF.) Even within the Ninth Circuit, offering is a deportable and inadmissible drug offense; its only value is to avoid an AF. Plead to “willfully and unlawfully offering to give away a controlled substance.” Regarding the substance, see discussion at 11377, Parts 3 and 6, of the non-federal substance defenses. The fact that 11377-79 and 11350-52 include a few substances that are not on federal schedules gives rise to some defenses against having a CS offense for any immigration purposes. Yes AF: Sell, give away, post-1/1/14 transport Not AF: Pre-1/1/14 transport is not an AF, because the minimum conduct is personal use. This should apply nationally. In the Ninth Circuit only, “offering to” commit one of the offenses is not an AF. | Sale, transport for sale, offering to do these is a CIMT. The BIA held that giving away for free is a CIMT, although immigration counsel can investigate arguments against this. Transport based on pre-1/1/14 conduct should not be a CIMT because the minimum conduct is for personal use. Assume that the non-federal substance defenses (see 11377) do not prevent a CIMT. | Yes, deportable and inadmissible CS, unless a non-federal substance defense applies to your client. See discussion at 11377. See Advice regarding reason to believe trafficking. | Inadmissible if gov’t has “reason to believe” person participated in trafficking. This is a fact-based removal ground that does not require a conviction, so defenders can only do so much. A plea to unspecified CS may not prevent this finding, if ICE has the motivation and competence to locate substantial evidence that federal CS was involved. A plea to offering to give away rather than offering to sell is best. The “reason to believe trafficking” inadmissibility ground is a bar to eligibility for almost all relief. An LPR who does not need to be admissible (e.g., who doesn’t leave U.S.) can survive it, but it is very bad for undocumented people, for refugees and asylees, or for LPRs who then travel outside the U.S. See § N.8 Controlled Substance and see § N.17 Immigration Relief Toolkit. Refugees, asylees. Commercial trafficking (sale, post 1/1/14 transport, or offer to do these) is a particularly serious crime (PSC). Asylees and refugees are very likely to lose their status and be removed based on conviction, unless they have strong equities and the case has these factors: amount was very small, D was peripheral to scheme, no minors involved. Offer to give away is better than offer to sell for this purpose, although it is not safe. Best is to possession or a non-drug offense. The non-federal substance defenses don’t work for this purpose. See “Representing Refugees and Asylees” in § N.17 Immigration Relief Toolkit. Defenses and alternative pleas: As with other drug offenses, counsel should try hard to plead to a non-drug offense, and review other possible defense options at 11377. If the defendant has equities such as a pending asylum case, family issues, etc., try to persuade the prosecution. If forced to plead to this offense, do plead specifically to “offering to distribute” to avoid an aggravated felony. Also consider alternative pleas such as H&S C 11391, 25189.5, 459, or B&P C 4141. Victims of human trafficking or intimate partner violence. If the defendant may be a victim who is working under duress, see discussion at Advice to 11377. | 233 |
| H&S C 11379.5 | Sell, Give away, Transport for sale (1/1/16 statute), Transport for personal use (pre-1/1/16 statute) PCP, etc. | Divisible: Offering: Offering to sell, give away, etc. is not an AF, but only in imm proceedings arising in the Ninth Circuit. See Advice. Yes AF: Sell, give away, post-1/1/16 transport | Sale, transport for sale, offering to do these is a CIMT. Conservatively assume giving away for free is a CIMT. | Yes, assume this is a deportable and inadmissible drug conviction. |
Plead to 11379 rather than 11379.5 in order to use non-federal substance defenses, especially if the defendant is an LPR who is not yet deportable. Transportation. Minimum conduct for transportation under 11379.5 includes for personal use, for offenses committed until 1/1/16. This is not an AF. As of 1/1/16 the transportation is for sale and is an AF. (Compare to 11357, 11379, which changed to transport for sale as of 1/1/14.) Consider defenses at 11377: Instead plead to a non-drug offense, to 372.5, etc., if that is possible.
| 240 |
| H&S C 11390, 11391 | Cultivate (11390) or | Offering is not an AF in the Ninth Circuit, and pre-1/1/16 transport is not an AF. See 11379. | Sale, transport for sale, offering to do these is CIMT. | Might not be a CS offense as it appears not to involve a federally defined CS. If that is so, it is neither a deportable nor inadmissible CS conviction. See Advice. |
CS offense: Involves “any spores or mycelium capable of producing mushrooms or other material which contain” e.g., psilocybin. While psilocybin is a federal CS, it appears that spores or mycelium are not on the federal list (or on almost any other state list). If that is so, this is not an AF or a deportable or inadmissible CS conviction. Trafficking offense. To avoid a particularly serious crime, bad for refugees and asylees, do not plead to any offense relating to sale. Offer to give away is best option, although a possession offense is much better. See 11379 and see Relief Toolkit. Consider defense at 11377: Instead plead to a non-drug offense, to 372.5, etc., if that is possible. | 250 |
| H&S C 11550 | Under the influence of a controlled substance (CS) | Not AF, even with a drug prior. | Not CIMT | Deportable, inadmissible as CS, except see defenses in Advice. Non-federal substance defenses may apply. The Ninth Circuit found 11550 is divisible as to substance.13See Tejeda v. Barr, 960 F.3d 1184 (9th Cir. 2020). Often no specific substance is charged for 11550. But 11377 is a better vehicle for this defense, where available. Note that 11550 includes meth, and in 2023 a federal district court held that meth is not a federally defined CS. See discussion of U.S. v. Verdugo at 11377, above. Firearms. 11550(e) should not be held a deportable firearms offense due to the antique firearms rule. See PC 29800(a). But it may be a bar to DACA. See PC 25400. |
See Advice for 11377. Marijuana/hashish: Ninth Cir held that conviction of being under the influence of marijuana or hashish qualifies for 30 grams marijuana benefits, but BIA disagrees. See 11377. It appears that 11550 does not include cannabis, but sometimes it is treated as though it does in immigration proceedings. A plea to 11550 from on or before 7/14/2011 is NOT eliminated for imm purposes by rehabilitative relief, under Lujan. 11550 does not get the same benefit as possession, possession of paraphernalia, or giving away marijuana.14Nunez-Reyes v Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). Consider defenses at 11377 before pleading to this offense.
| 260 |
| H&S C 25189.5 | Disposal of hazardous waste | Not AF | Should not be CIMT | Not CS, can include variety of hazardous waste |
Possible substitute plea for drug production lab or other offense. SB54: This is one of the few wobblers that is protected under SB54, so that the sheriff cannot facilitate transfer to ICE or notify ICE of the defendant’s release date based on this offense.
| 280 |
| PC 31 | Aid and abet | Yes, AF if underlying offense is. | Yes, CIMT if underlying offense is | Yes, if underlying offense is a removable offense, aiding and abetting is |
This provides no benefit above the principal offense for immigration purposes. But see PC 32, which can be a good alternative. | 290 |
| PC 32 | Accessory after the fact | Yes, AF as obstruction of justice if a year or more is imposed. See § N.4 Sentence. for suggestions on how to avoid one year while accepting significant custody time. | Never a CIMT per Ninth Cir. But because BIA holds it is a CIMT if principal’s offense is a CIMT,15Pen C § 32 as a CIMT. The Ninth Circuit held that Pen C § 32 is categorically not a CIMT (never is one), because it lacks the element of depravity required by the generic definition of moral turpitude. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007)(en banc). In a case arising outside of the Ninth Circuit, however, the Board of Immigration Appeals held that accessory after the fact is divisible: it is a CIMT only if the principal’s offense is one. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (regarding federal accessory, 18 USC § 3). | No other removal ground. PC 32 is excellent plea to avoid many removal grounds, e.g., a conviction relating to CS, DV, violence, firearms, AFs (other than maybe obstruction outside the Ninth Cir.) etc., because it does not take on the character of the principal’s offense (except perhaps for CIMT purposes). For example, accessory to CS offense or a COV is not itself a CS offense or COV.16Pen C § 32 and other removal grounds. This is where Pen C § 32 is tremendously useful. Accessory and the similar offense misprision of felony are not drug convictions even where the principal offense involves drugs. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (federal accessory after the fact), Matter of Velasco, 16 I&N Dec. 281 (BIA 1977) (federal misprision of felony), following Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977). See also Matter of Carrillo, 16 I&N Dec. 625, 626 (BIA 1978) (conviction of unlawful carrying of firearm during commission of a felony under a former federal statute was not a drug offense even where felony was identified as drug offense). The Ninth Circuit held that accessory after the fact is not a crime of violence under 18 USC § 16 even where the principal offense involved violence. United States v. Innie, 7 F.3d 840 (9th Cir. 1993). See also 136.1(b)(1). But get 364 days or less to avoid an AF. |
AF. See further discussion at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). For history leading to Pugin and additional resources, see endnote.17Pen § 32 as the AF Obstruction of Justice. The Supreme Court addressed the definition of obstruction of justice in Pugin v. Garland, 22-23 (June 22, 2023). For more in-depth discussion of Pugin, see, e.g., Merle D. Kahn, “Obstruction of Justice and ‘Obstruction-Adjacent’ Offenses” (July 9, 2023) in Top of the Ninth: A Review of Ninth Circuit and BIA Decisions at https://topoftheninth.com/, and the SCOTUS Blog analysis at https://www.scotusblog.com/case-files/cases/pugin-v-garland/. Check for a forthcoming Advisory by the National Immigration Project at https://nipnlg.org/work/resources. An offense “relating to obstruction of justice” is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S). In Pugin v. Garland, 22-23 (June 22, 2023) the Supreme Court held that accessory after the fact (a Virginia statute) is obstruction of justice. It specifically rejected the Ninth Circuit’s definition that limited obstruction to an offense that interferes with a pending (already existing) investigation or proceeding. The Ninth Circuit had found PC 32 is not obstruction, because the conduct can occur before an investigation has begun. It is highly likely that the Ninth Circuit will find that PC 32 is obstruction. The Supreme Court did not provide a clear definition of obstruction. It rejected the Ninth Circuit’s limit, and stated that that ‘corruption’ or intent to interfere with legal proceedings is obstruction. Based on the majority’s vague definition, ICE may overcharge offenses as obstruction. Removal defense advocates may contest this for various offenses, but in criminal proceedings we should act conservatively and assume that PC 32, as well as PC 69, several offenses between PC 92-183 including 136.1, 140, 148, 167; VC 10851; and perhaps offenses such as PC 4532, VC 2800.2, or even VC 20001 maybe charged as an AF as obstruction – if a sentence of a year or more is imposed. Without that sentence, several of these offenses, including PC 32, are immigration-neutral and can be valuable alternative pleas. Alternative pleas. If a year or more is needed, consider safer pleas such as PC 236/237, 487, 530.5, 459/460(a) or (b), 591, 594, and probably 207. See also ways to structure sentences to avoid a year or more for immigration purposes, at § N.4 Sentence. If a client has a prior conviction of one of the above offenses with a year or more imposed, try to vacate the conviction. On remand, the Ninth Circuit will consider whether the adverse Pugin obstruction definition will apply retroactively to convictions from before Sept. 11, 2018. But advocates should assume conservatively that the argument will not prevail, and attempt to vacate risky convictions from before that date. CIMT: Within the Ninth Circuit PC 32 is not a CIMT. However, if the client is taken elsewhere, the BIA’s test (that PC 32 is a CIMT if the principals’ offense is) may prevail. So, best practice is to identify a principal’s specific felony that is not a CIMT, such as 136.1(b)(1), 236/237, 459/460, or 594 for a violent offense, or 530.5, 496, 459, or 10851 for a theft or fraud offense. If that is not possible, an inconclusive (vague) ROC that does not ID the principal’s offense might help protect a permanent resident contesting deportability, but will not help anyone applying for relief under Pereida. See discussion of Pereida and an inconclusive ROC at 11377, above. Again, if the person is in immigration proceedings within the Ninth Circuit, the offense automatically is not a CIMT. SB 54. This is one of a few wobblers that does not destroy SB 54 protections limiting jail cooperation with ICE. See SB 54 advisory at www.ilrc.org/crimes. | 300 |
| PC 69 | Attempt to deter by threat or resist by force an executive officer in performing any duty | Get 364 days or less on any single count to avoid an AF as obstruction of justice. Not an AF as a COV: minimum conduct is offensive touching.18PC 69 as an AF and a COV. Note that while PC § 69 is not an AF as a crime of violence, it likely will be charged as an AF under a different category, as obstruction of justice, if a sentence of a year or more is imposed. See below endnote and see Advice to PC § 32. | Not CIMT because minimum conduct is offensive touching.19PC 69 as a CIMT. There is no direct holding, but PC 69 reaches conduct that should be held not to involve moral turpitude. It includes an offensive touching. See Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (finding that the minimum conduct for Pen C § 69 is offensive touching; therefore, it is not a COV under 18 USC 16(a)). It also includes resisting an officer who is trying to prevent you from committing suicide. See United States v. Fowles, 225 F. App’x 713, 714 (9th Cir. 2007), discussed below. | No other removal ground. |
AF as Obstruction. Obstruction of justice is an AF if a year or more sentence is imposed. INA 101(a)(43)(S). Defenders must assume conservatively that PC 69 will be held obstruction under Pugin v. Garland, 22-23, 2023 WL 4110232 (June 22, 2023). There the Supreme Court rejected the Ninth Circuit’s definition of obstruction, which required interference in a pending (already existing) investigation or proceeding. Because PC 69 includes resisting an initial arrest, it did not come within that definition. Now defenders must assume that any PC 69 conviction will be an AF, if a sentence of a year or more is imposed. See alternative pleas below. Immigration advocates can investigate arguments that PC 69 is not obstruction under Pugin – for example, because it reaches interfering with officers’ duties that are related to public safety and not to a crime of potential legal proceedings.20PC 69 as obstruction. An offense relating to “obstruction of justice” is an AF if a sentence of a year or more is imposed. INA § 101(a)(43)(S). Section 69(a) is a wobbler offense that punishes a person who commits either of two prongs: “who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty…” Section 69 did not come within the Ninth Circuit’s definition of obstruction set out in Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II). That definition required interference with a pending proceeding or investigation, whereas PC § 69 includes interference in any duty and includes an initial arrest. However, the Supreme Court rejected the “pending investigation or proceeding” definition in Pugin v. Garland, No. 22-23 (June 22, 2023). Defenders must assume conservatively that PC § 69 will be held to be obstruction under Pugin, and should avoid a sentence of a year. Defenders and advocates should try to vacate a prior conviction with that sentence. – For further discussion see ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). Alternatives. If a year or more is needed on a plea, consider safer alternatives such as PC 236/237, 459/460(a) or (b), 530.5. If a lot of time is required, PC 69 can be the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence. Try to vacate prior convictions of PC 69 with a year imposed. Advocates will argue that the Pugin definition should not apply to convictions from before Sept. 11, 2018, but we must assume this will not prevail. COV / CIMT: As always, although this is not required under the categorical approach, the best practice is to give D extra protection by pleading specifically to offensive touching. | 310 |
| PC 92 | Bribery of a judge, juror, umpire, referee | Get 364 days or less on a single count if judge, juror; see Advice | Yes CIMT. | No other removal ground. |
Specific plea to bribery of an umpire or referee arguably is not commercial bribery and should not be an AF even with 1 year; more research may be needed.21Commercial bribery, bribery of a witness, and obstruction of justice are aggravated felonies if a year is imposed, but bribery of a referee or umpire should not be. See 8 USC § 1101(a)(43)(R), (S). Advocates could investigate whether the statute is indivisible between bribery of a witness and an umpire. | 320 |
| PC 112 (misd), 113 (felony) | Manufacture, sell false documents with intent to conceal immigration status of another | Obtain 364 days or less to avoid AF charge. | Likely charged as a CIMT, although imm advocates should explore arguments against this. There is no intent to defraud or harm.22Pen C §§ 112, 113 as a CIMT. The BIA has found that “impairing or obstructing a function of the Government by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude,” even without an element of fraud. See, e g., Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (false statement to obtain a passport). However, advocates may argue that Pen C §§ 112, 113 does not require intent that the documents be used to make a false statement to government; it includes the intent to conceal immigration status for any purpose. See, e.g., People v. Guzman, H022726, 2003 Cal. App. Unpub. LEXIS 1199 (Feb. 3, 2003) (unpublished) (man used false document to try to get driver’s license to be able to retrieve wife’s towed car). In addition, the Ninth Circuit has required intent to defraud or cause harm for moral turpitude purposes. See, e.g., cases cited for offenses such as Pen C § 530.5. While advocates may assert this untried defense, defenders should not rely upon it succeeding. | Document or visa fraud. If the documents are visas or other docs intended to obtain imm benefits, including an I-9, conviction could support a civil hearing under 8 USC 1324c to make a finding of deportable document fraud. Might also trigger visa fraud. |
AF. Avoid a sentence imposed of 1 year or more on any single count, because ICE may charge this as an AF as document fraud, forgery, counterfeiting, or perhaps obstruction of justice. Immigration advocates may have arguments against this, but it is far better to avoid 1 year.23Pen C §§ 112, 113 as an AF if a sentence of a year or more is imposed. This offense might be charged as an aggravated felony as counterfeiting, or under some other category, if a year or more is imposed on a single count. See comments in the Overview of this document, and see Note: Sentences at www.ilrc.org/chart, for discussion of how to accept significant jail or prison time but avoid a one-year sentence for immigration purposes. AF as crime of deceit with loss to victim/s exceeding $10,000, assuming there are “victims” to this offense.24AF as fraud and deceit. A crime involving fraud or deceit is an AF if the loss to the victim/s exceeds $10,000. See 8 USC § 1101(a)(43)(M)(ii). Pen C §§ 112, 113 might be held an AF if there is such a loss. However, it is not clear that persons purchasing these objects, who know that the documents are not lawfully valid, can be termed “victims” of the offense.
| 330 |
| PC 114 | Use false documents to conceal one’s immigration status | See PC 112, 113, and see Advice. Obtain 364 days or less | See PC 112, 113. | See 112, 113. |
AF. See 112, 113. | 340 |
| PC 115 | Knowingly offers false or forged instrument to be registered | Try to get 364 days or less, and/or plead to “false,” not forged, document. See Advice. | Likely charged as CIMT, but advocates should explore defenses: it does not require a material misstatement, or intent to defraud.25Advocates can explore arguments that Pen C § 115 is not a CIMT. It does not require an intent to defraud. See, e g., People v. Geibel (1949) 93 Cal. App. 2d 147, 169 and see CALCRIM 1945. Further, although some courts have stated without discussion that the false fact must be material, that does not appear to be accurate. See People v. Feinberg (1997) 51 Cal. App. 4th 1566, 1579 (“‘The core purpose of Penal Code section 115 is to protect the integrity and reliability of public records.’ This purpose is served by an interpretation that prohibits any knowing falsification of public records. Accordingly, we will not insert into section 115 a requirement of materiality that the Legislature did not see fit to include.”) (citations omitted), and see CALCRIM 1945 and People v. Murphy (2011) 52 Cal. 4th 81, which do not cite materiality as an element. Section 115 extends to a wide range of offenses involving filing any document with any government agency, such as filing a false fishing report. People v. Powers (2004), 117 Cal. App. 4th 291. | See 112, 113. |
AF with 1 year. Forgery with a sentence of 1 yr or more is an AF. But PC 115 also reaches a “false” instrument (not forged but containing false information) and there is a strong argument that this is not “forgery.”26Conviction of an offense “relating to … forgery” is an aggravated felony if a sentence of a year or more was imposed. 8 USC 1101(a)(43)(R). Section 115 can be violated by filing a “false” instrument, which simply contains false information without any forgery. See People v. Gangemi, 13 Cal. App. 4th 1790 (1993) (Pen C § 115 conviction upheld where the filed government documents contained false information regarding financial assets); Generes v. Justice Court, 106 Cal. App. 3d 678, 682 (1980) (Pen C § 115 conviction upheld “even though [the document] does not bear a forged signature or otherwise meet the technical requirements of a forged instrument.”). If it is not possible to avoid an imposed sentence of a year or more, defenders should at least plead to conduct involving a “false” rather than forged document. At least in the Ninth Circuit, a document does not meet the generic definition of forgery based solely on the fact that it contains false information. The Ninth Circuit stated that “it is clear that an essential element of the generic offense of forgery is the false making or alteration of a document, such that the document is not what it purports to be.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 875 (9th Cir. 2008) (holding that conviction for conduct involving a false document under Pen C § 475(c) is not forgery) (emphasis added). The generic definition of forgery does not include conduct “that does not fall within the generic definition of forgery; namely, possession or use of a genuine instrument with intent to defraud but not to forge.” Id. at 876. However, the Third Circuit appeared to find that a false statement in a document could be an aggravated felony with a year’s sentence, by applying an expanded definition of the term “relating to” forgery. See Williams v. Attorney Gen. United States, 880 F.3d 100, 108 (3d Cir. 2018). The Ninth Circuit rejected that argument in Vizcarra, above, but the BIA and other circuits courts of appeals have not weighed in on it. Immigration advocates can consider this defense, but defenders should try to get 364 days or less on each count. | 350 |
| PC 118 | Perjury | Get 364 days or less on any one count to avoid an AF as perjury. | Ninth Circuit held that written perjury is not a CIMT, and that the statute is divisible. Plead specifically to written, but also see Advice. | No other removal ground. |
CIMT. The Ninth Circuit held that written perjury under PC 118 is not a CIMT, but it is possible that circuits outside of the Ninth would come to a different conclusion, as the BIA did. Thus if it is critical to avoid a CIMT, consider other offenses, e.g., 529(a)(3), 530.5 (which can take a year) or 496 (which cannot). 27Pen C § 118 as a CIMT. The Ninth Circuit found that Pen C § 118 is divisible between making a false statement under oath before a tribunal and making a false written statement under penalty of perjury (e.g., in a driver’s license application). Rivera v. Lynch, 816 F.3d 1064 (9th Cir 2016). The court found that written perjury is not a CIMT, because it includes “non-case related lying,” does not exclude statements by incompetent defendants, and lacks the solemnity of an oral oath-taking. Defenders should plead specifically to written perjury. AF. The Ninth Circuit held that PC 118 meets the generic definition of perjury and thus any conviction of 118 is an AF if a year or more is imposed, regardless of whether perjury was written or oral.28Pen C §118 as an AF. The BIA and the Ninth Circuit have held that Pen C 118 is categorically (always) “perjury” and thus is an AF if a sentence of a year or more is imposed. See Matter of Alvarado, 26 I&N Dec 895 (BIA 2016) and Yim Barr, 972 F.3d 1069 (9th Cir. 2020), deferring to the BIA’s definition. Compare this to the Ninth Circuit’s ruling for Pen C 118 as a CIMT, discussed in Rivera v. Lynch, 816 F.3d 1064 (9th Cir 2016) in above endnote. If the loss to victim/s exceeds $10k, see instructions at PC 484, 470. SB54: This is one of the few wobblers that is protected by SB54 and thus the sheriff is not permitted to transfer to ICE.
| 360 |
| PC 135 | Destroy or conceal evidence | Not AF as obstruction of justice because it has a 6-month maximum sentence | Conservatively assume a CIMT, but see Advice | No other removal ground. Like PC 32, this should not take on the character of underlying offense, so it is a very good alternative for drug, DV, child abuse, etc. |
CIMT: Immigration advocates can investigate whether PC 135 should be treated the same as PC 32. The Ninth Circuit has held PC 32 never is a CIMT, but the BIA disagrees. But if avoiding CIMT is a priority, see PC 136.1(b)(1) or even PC 32. | 370 |
| PC 136.1 (b)(1) | Nonviolently try to persuade a witness or victim not to file a police report | To securely avoid AF as obstruction, obtain 364 days or less imposed on each count, but see Advice. Not an AF as a COV. | Probably not a CIMT. Ninth Cir held it is overbroad as a CIMT. BIA held it is never a CIMT in at least one unpublished decision, but not in precedent opinion.29PC 136.1(b)(1) as a CIMT. The Ninth Circuit held that the minimum conduct to commit § 136.1(a), “knowingly and maliciously” preventing or dissuading a witness or victim from participating in a trial, proceeding, or inquiry, is not a CIMT. Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017), citing cases like People v. Wahidi (2013) 222 Cal App 4th 802. Therefore, while 136.1(b)(1) is a very reasonable plea to avoid a CIMT, it remains possible that in future the BIA will find this to be a CIMT, and Ninth Circuit might defer. | No other removal grounds. Great substitute plea for drug, violence, DV, fraud, firearms, etc. because it does not take on those elements. See also PC 32. Because a felony is a strike with high exposure, it can substitute for more serious charges. But get 364 days or less, either with felony probation or as a consecutive prison sentence of eight months. | PC 136.1 (b)(1) AF: Defenders must assume that PC 136.1(b)(1) is an AF as obstruction of justice, if a sentence of a year or more is imposed. The Ninth Circuit will address this issue on remand from the Supreme Court. See discussion of Pugin and Cordero-Garcia, below. AF: PC § 136.1(b)(1) is an AF as obstruction of justice if a sentence of a year or more is imposed. 30Cordero-Garcia v. Garland, 105 F.4th 1168 (9th Cir. 2024), citing Pugin v. Garland, 599 U.S. 600 (2023). The Ninth Circuit held that this decision is retroactive and also applies to convictions entered before June 22, 2023 – the date of the Supreme Court’s decision in Pugin. 31Cordero Garcia, 105 F.4th at 1173 n. 5 (9th Cir. 2024) (rejecting Cordero Garcia’s retroactivity argument and finding that the Supreme Court’s decision in Pugin was based on a plain reading of the statute and therefore raised no retroactivity concerns). If a year or more sentence is needed, consider safer pleas such as PC 236/237, 459/460(a) or (b), 487, 591, , possession of a weapon, or probably 207. If a lot of time and a strike is required, consider making 136.1(b)(1) the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence. See further discussion of Pugin at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023) (but note that the Ninth Circuit held that Pugin will be applied retroactively). | 380 |
| PC 140 | Use or threaten to use force or violence upon the person of, or take, damage, property of, a witness who provided info to authorities v | Get 364 days or less to avoid an AF as obstruction of justice. See Advice if that was not done or is not possible. Probably not a COV | While arguably it is not a CIMT, there is no precedent. If it is important to avoid a CIMT, consider a different plea. But 140 can be violated by an offensive touching or any vandalism and lacks intent to influence any proceeding. | While arguably it is not a CIMT, there is no precedent. If it is important to avoid a CIMT, consider a different plea. But 140 can be violated by an offensive touching or any vandalism and lacks intent to influence any proceeding. See endnote at Advice. |
AF as Obstruction. Assume that this is an AF as obstruction of justice if a year or more is imposed, under the Supreme Court’s definition in Pugin v. Garland, No. 22-23 (June 22, 2023). For further discussion of Pugin see Advice to PC 32, above, and see ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). If a year or more sentence is required, consider offenses such as 236/237, 487, 459/460(a) or (b), 591, or possession of a weapon. For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence. For possible arguments in removal defense that PC 140 is not an AF as obstruction or a COV, and is not a CIMT, see endnote.32Pen C § 140 as obstruction of justice. See Advice to Pen C § 32 for further discussion of obstruction of justice as an aggravated felony, 8 USC § 1101(a)(43)(S). Under the Supreme Court’s vague definition in Pugin, this is extremely likely to be held to be obstruction. AF as COV. A COV is an AF if 1 yr or more is imposed. Taking, or threatening to take, property is not a COV. In addition, it appears that threat/use of force under 140 includes an offensive touching, and thus also is not a COV. | 390 |
| PC 148(a)-(d) | Resisting officer or EMT in discharge of duty (a) Additionally, taking the officer’s weapon (b)-(d) | Obtain 364 days or less on any single count of 148(b)-(d) to avoid possible AF as obstruction of justice. PC148(a) is a misdemeanor with maximum 364 days as of January 1, 2015, so it cannot be an AF. But pre-2015 148(a) misd convictions with a year imposed might be an AF. See Advice | See citations on CIMT.33Pen C 148 as CIMT. PC 148(a) should not be held a CIMT because it can be committed nonviolently and as a principled action, for example by using passive resistance in support of a nonviolent political demonstration. In re Bacon (1966) 240 Cal. App. 2d 34, 53, (“We hold, therefore, that a person who goes limp and thereby requires the arresting officer to drag or bodily lift and carry him in order to effect his arrest” violates PC § 148.), disapproved of on other grounds by In re Brown (1973) 9 Cal. 3d 612. 148(a) should not be CIMT: minimum conduct is, e.g., going limp in a peaceful demonstration. Also, an element of 148(a)-(d) is that D knew or reasonably should have known the other was an officer. Arguably this negligence is not a CIMT. Try to plead specifically to should have known. | Assume conservatively that (c) and (d) are deportable firearms offenses, as courts might hold that the police on duty are not likely to be holding antique weapons, in case the antique firearm exception is held not to apply to weapons taken from police on duty.34Pen C § 148 uses language from the definition of firearm found at § 16250(a) (see CALCRIM 2653) which includes antique firearms. But the government may argue that it is impossible that officers engaged in their duties would be using antique firearms. | PC 148(a)-(d). AF. Obstruction of justice is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S). Counsel must assume that PC 148 is an AF as obstruction if a year or more is imposed, because it involves some intent to interfere in a legal investigation or proceeding. Pen C 148 was not obstruction under the Ninth Circuit’s definition set out in Valenzuela Gallardo, which required interference with a pending (already existing) proceeding or investigation. However, the Supreme Court rejected that definition in Pugin v. Garland, No. 22-23 (June 22, 2023). See further discussion of Pugin in Advice to PC 32, above and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). If a year or more sentence is required, consider safer offenses such as 236/237, 487, 459/460(a) or (b), 591, or possession of a weapon. Also, PC 69 appears to have a stronger argument that it is not obstruction than 148 does and it could be an alternative – although not as safe as the preceding options. For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence. | 400 |
| PC 148.5 | Knowingly making false report of crime | Not AF as obstruction because 6-month max | See Advice and see 148.9. | No other removal ground. |
This does not appear to fit the definition of CIMT35 There are no cases on whether Pen C § 148.5 is categorically a CIMT. In Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008), the Ninth Circuit held that giving false identification to a peace officer under Pen C § 148.9(a) did not require fraudulent intent and was not categorically a CIMT. The court reasoned that giving false information to a police officer under § 148.9(a) requires a showing that the defendant knowingly misrepresented their identity to a peace officer but does not require that the individual thereby knowingly attempted to obtain anything of value, indicating that fraud was not implicit in the nature of the crime. Id. So, the motive for falsely reporting a criminal offense under § 148.5 may render it as a CIMT, especially where it may interfere with an ongoing investigation or proceeding. | 410 |
| PC 148.9 | False ID to peace officer | Not AF because 6-month max | Ninth Circuit held not a CIMT36Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008). | No other removal ground. |
No specific intent to evade arrest or prosecution, or commit fraud | 420 |
| PC 166 (a)(1)–(4), (b) | Contempt of court, including violation of any court order | Not a potential AF because 6-month max. | Should not be CIMT. (a)(1)-(3) has no intent. (a)(4) should not be held CIMT because minimum conduct is to violate any court order—but there is no imm case on point. (But (4) might be a deportable DV offense; see next column). | DV deportation ground: A civil or criminal court finding of any violation of any DV “stay-away” order or condition will make the person deportable. Best practice is plead to 166(a)(1)-(3) with specific non-deportable conduct. See Advice. Pleading to (a)(4) or (b) when the violation was of a DV protective order is very risky. Try to: -Plead to a violation of a non-DV order, or to violating a different portion of a DV order, e.g., regarding child support, attending classes. -Or plead to a new (immigration-neutral) offense, with no finding of violation of any order. See Advice. | PC 166(a) See endnote for further discussion and citations37PC § 166 as a deportable finding. A person is deportable under the “domestic violence” deportation ground, INA § 237(a)(2)(E)(ii), 8 USC § 1227(a)(2)(E)(ii), if a civil or criminal court finds that they violated certain portions of a DV protective order. The violation must be after admission and after September 30, 1996. The provision reads: DV Deportation Ground Definitions. A non-USC is deportable if a civil or criminal court judge finds they violated a part of a DV protective order that protects against threat, injury, or repeat harassment. We’ll refer to this as any type of DV “stay-away” provision, e.g., restricting phone calls, social media, physical distance. A DV “protective order” is broadly defined as “any type of civil or criminal injunction issued for the purpose of preventing violent or threatening acts of domestic violence.” Assume any family court orders, probation conditions, delinquency orders, etc. Any conduct that violates the order can count, even if it was non-threatening or casual. The Ninth Circuit held that a criminal court judge’s finding that D violated an order by walking a child halfway up the driveway after visitation, when they were supposed to drop them at the curb, was a basis for deportability. The required “domestic relationship” includes, among others, any person protected under the state DV laws. For California this includes spouses, dating relationships, co-parents, co-habitants, as well as relationships with second degree of consanguinity: parents, grandparents, children, grandchildren, siblings.38See, e.g., chart at http://www2.courtinfo.ca.gov/rulesofconduct/files/tableofconsanguinity.pdf 166(a)(1)-(3). A plea to 166(a)(1)-(3) should not be deportable because the sections specify court disturbances, not violation of a protective order. (If the subject of a protective order is in court, ensure that the judge’s finding is for specific conduct not directed at that person.) 166(a)(4), (b). A plea to (a)(4) or (b) is dangerous if in fact the violation involved a DV protective order. One option is to plead to violating a specific, different type of order (or different portion of a DV protective order). Here, do not rely on creating a vague court finding that does not specify the provision that was violated: on this issue, ICE can use any probative and substantial evidence from any source to show that a judge’s finding of violation of “an order” actually was a finding of violation of a DV stay-away order or other portion of a DV order meant to protect against injury, threats, or repeat harassment. If you must plead to (a)(4) or (b) involving a DV order, plead to violating a part of the order whose purpose is not to protect against threats, harassment, etc., e.g., to problems relating to child custody, visits, or support, or failure to attend classes or probation meetings. Another option is to plead to a new, immigration-neutral offense rather than to violating any order. Consider PC 370, 415, trespass, 243(a) (or even (e)), 459, 591, 594, or others. It is optimal, but probably not necessary, to get these extra protections: (a) plead to a victimless crime or identify a specific victim not listed in the DV order (e.g., the ex-wife’s new boyfriend, the neighbor, the officer), and/or (b) where possible, have the record sanitized of charges of violation of any order. But most important is to keep to the new offense, with no finding by the judge of violation of an order. Removal defense advocates may note that ICE might not obtain information about the basis for a finding of probation violation, much less a family court finding of violation, and ICE has the burden to prove deportability. In contrast, rap sheet will show a conviction of 166 or 273.6, although it may not show more. Defenders: Warn clients not to violate a stay-away order. When a non-USC client gets any kind of DV stay-away order or condition, warn them that it is critical not to violate this in the smallest way. If they are charged with violating an order, tell your PD that you need immigration advice before resolving the case, including VOP. | 430 |
| PC 166(c) (1)-(4) | Violation of a protective or stay-away court order protecting various subjects | PC 166(c)(1)-(3) Not a potential AF because the maximum sentence for a conviction after 1/1/15 is 364 days. PC 166(c)(4) is an AF as a COV if a year or more is imposed. 39PC 166(c)(4) (as well as PC 273.6(d)) as a COV. As discussed above, these convictions may cause deportability as a judicial finding of a violation of a DV stay-away order, under INA § 237(a)(2)(E)(ii). This section is about a different issue: whether these offenses are a crime of violence (COV), and therefore an immigration “aggravated felony” if a sentence of a year or more is imposed. See INA § 101(a)(43)(F). | While there are no cases, at least 166(c)(1) and (3) should not be held a CIMT as they can be committed by a small or technical violation. Try to avoid (c)(2) (causing injury). Assume that (c)(4) will be treated as a CIMT because it involves use or credible threat of violence. | DV deportation ground: A civil or criminal court finding of any violation of any DV “stay-away” or protective order or provision will make the person deportable. See 166(a), above. Any conviction under 166(c)(1)-(4) is a deportable offense if D and V share a protected domestic relationship. See discussion at 166(a), above. To protect D from this, identify a specific victim who does not have a protected relationship with D, or plead to a different offense. See Advice. | PC 166(c) DV deportation ground. To avoid deportability, consider a plea to 166(a)(1)-(3), or to a new offense (if possible, not against the subject of the protective order) with no finding of violation of an order, as discussed at 166(a), above. If one must plea to 166(c), try to create a plea that identifies a specific victim who does not have a domestic relationship with D. For example, 166(c)(1)(A) prohibits violating an order issued pursuant to 136.2, which can include DV or non-DV victims. Section 166(c)(1)(C) prohibits violating an order by committing elder abuse, PC 368, which can involve an elder with no domestic relationship (including no parent, grandparent, or sibling). Do not rely on creating a vague order that does not reveal the victim. ICE can use any relevant and probative evidence, including from outside the record of conviction, to prove that the order that the judge found was violated was actually a DV stay-away order. | 440 |
| PC 182 | Conspiracy | Yes, AF if principal offense is AF. | CIMT if principal offense is CIMT | Generally there is no advantage because conspiracy takes on the character of the principal offense, e.g., CS, firearm. |
Conspiracy and DV deport grounds. Counsel in removal proceedings may argue that by its own language, the DV deportation ground at 1227(a)(2)(E)(i) does not include conspiracy to commit child abuse, stalking, or a crime of DV. Neither does the definition of COV at 18 USC 16(a).408 USC § 1227(a)(2)(E)(i) does not include the phrase “or conspiracy or attempt to commit the offense.” Compare this to controlled substance, firearms, and other inadmissibility and deportability grounds, which do contain that language. Neither does 18 USC § 16(a), the definition of a crime of violence. Deceit and $10k. Conspiracy and attempt are bad pleas where an offense could be an AF as fraud/deceit where loss exceeds $10k. Plead to theft or see other strategies at PC 484. | 450 |
| PC 186.22 (a) | Participates in gang, promotes felonious conduct | Not AF | This should not be a CIMT per se, although an immigration judge with an anti-gang stance might try to so hold. See good Ninth Circuit law on 186.22 (b), (d), below. | See Advice re possible security grounds. |
This is a bad plea because gang-related activity is an extremely negative factor in every discretionary decision, including release on bond. Whenever possible, avoid a plea to 186.22 and take the extra time in some other manner. While there is no “gang” removal ground per se, gang membership sometimes is used to find inadmissibility under the “security and related grounds,” which are not waivable. 8 USC 1182(a)(3)(A) (ii). Serves as a bar to DACA; see PC 25400. | 460 |
| PC 186.22 (b), (d) | Gang benefit enhancement | AF if underlying conduct is AF (e.g., a COV with 1-yr imposed) | Does not change a non-CIMT into a CIMT under current Ninth Cir law; see Advice. | See discussion at 186.22(a). | PC 186.22 (b), (d) CIMT: Ninth Circuit held that this enhancement does not change a non-CIMT (possess weapon) into a CIMT. It declined to follow BIA precedent finding that 186.22(d) transforms PC 594 into a CIMT.41See Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015) (9th Cir. 2015) (gang enhancement under § 186.22(b) does not turn a non-CIMT (possession of a billy club) into a CIMT), declining to follow in this circuit Matter of E.E. Hernandez, 26 I&N Dec. 397 (BIA 2015) (vandalism with enhancement, Pen C §§ 594(a), 186.22(d), is a CIMT). BIA will apply its own rule outside the Ninth Cir. See Advice for 186.22(a) regarding serious risks of gang provisions in general. | 470 |
| PC 187 | Murder (first or second degree) | Divisible as the AF “murder” because California includes murder of fetus; see Advice. | Yes CIMT | Can be deportable crime of DV. |
See manslaughter as an alternative. The Ninth Circuit found that 187(a) is divisible as murder because it is “the unlawful killing of a human being, or a fetus,” while the federal generic definition of murder does not include a fetus. The judge or officer may look to the record of conviction to determine whether the victim was a fetus.42Gomez Fernandez v. Barr, 969 F.3d 1077 (9th Cir. 2020). | 480 |
| PC 192(a) | Voluntary manslaughter | AF as a COV if a year or more is imposed. To avoid an AF, obtain 364 days or less, or plead to 192(b) or other alternative. | Yes CIMT, 43Ortiz v. Garland, 25 F.4th 1223 (9th Cir. 2022) (PC 192(a) is a CIMT).as is attempt. To avoid CIMT see PC 192(b). | DV deportation ground. As a COV (see Advice), PC 192(a) is a deportable “crime of DV” if the victim has a protected DV relationship, regardless of sentence. To avoid this outcome, plead to a non-COV such as 192(b). To ensure not wrongly charged as a deportable “crime of child abuse,” keep minor V’s age out of ROC. See 243(a). | PC 192(a) COV: Defenders must assume that PC 192(a) is an AF as a COV if a sentence of a year or more is imposed. In US v. Draper (2023), the Ninth Circuit held that federal voluntary manslaughter is a COV because the minimum conduct requires a mens rea of extreme recklessness or depraved heart. (It distinguished that mens rea from other degrees of recklessness such as a conscious disregard of a known risk, from the COV definition.) After finding that federal voluntary manslaughter is a COV, the panel in Draper stated in dicta that because PC 192(a) has the same mens rea, it too is a COV. It stated that older Ninth Circuit precedent holding that 192(a) is not a COV is inconsistent with the subsequent en banc Ninth Circuit decision in Begay (2022), which interpreted the Supreme Court decision in Borden (2021). In Borden the Supreme Court affirmed that recklessness generally is not a COV, but left open whether a mens rea of extreme recklessness or depraved heart is a COV. Begay held that it is a COV. See citations and further discussion in endnote. 44This endnote briefly summarizes the cases that led to the Ninth Circuit’s statement in dicta that, despite prior precedent to the contrary, PC § 192(a) is a COV. See United States v. Draper, 84 F.4th 797, 805, N.3 (9th Cir. 2023). Removal defense advocates can investigate possible defenses against applying this ruling to 192(a), especially if the 192(a) conviction occurred at least before the date of Draper’s publication, Oct. 17, 2023. At the same time they must investigate the possibility of PCR to vacate the conviction. See discussion at endnote. Attempt to commit voluntary manslaughter, CA PC 664/192(a), is a COV. 45Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018). | 490 |
| PC 192(b), (c)(1), (2) | Involuntary or vehicular manslaughter | Not a COV. | Should not be CIMT; best practice is plea to negligence, not conscious disregard.46Pen C § 192(b) as a CIMT. If a client has strong representation in removal proceedings, they should be able to prove that 192(b) is not a CIMT. But because so many immigrants lack any representation, and there is no case directly on point, defenders should consider this a risky plea for a noncitizen who must avoid a CIMT. The BIA has long held that reckless conduct is a CIMT only under certain circumstances. See Matter of Tavdidishvili, 27 I&N Dec. 142, 143–44 (BIA 2017): We have held that moral turpitude inheres in crimes involving serious misconduct committed with at least a culpable mental state of recklessness– that is, “a conscious disregard of a substantial and unjustifiable risk.” Matter of Franklin, 20 I&N Dec. 867, 870 (BIA 1994) (emphasis added) (holding that recklessly causing the death of another person was a crime involving moral turpitude), aff’d Franklin v. INS, 72 F.3d 571 (8th Cir. 1995). In Matter of Medina, 15 I&N Dec. 611, 614 (BIA 1976), aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977), we concluded that a person acting with this mental state could be convicted of a crime involving moral turpitude because “recklessness requires an actual awareness of the risk created by the criminal violator’s action”–in other words, a “violator must show a willingness to commit the act in disregard of the perceived risk.” In contrast, the BIA repeatedly has held that “crimes committed with “criminal negligence” are generally not morally turpitudinous, because neither ‘intent’ nor a “conscious disregard of a substantial and unjustifiable risk” is required for conviction–that is, no sufficiently culpable mental state is necessary to commit such an offense.” Matter of Tavididishvili, 27 I&N at 144 (eventually holding that NY involuntary manslaughter is not a CIMT), citing Matter of Perez-Contreras, 20 I&N Dec. 615, 619 (BIA 1992) (Washington involuntary manslaughter is not a CIMT). | Because it is not a COV, it is not a crime of DV | PC 192(b), (c)(1), (2) These offenses are not COVs because the minimum conduct required for guilt amounts to gross negligence, which is not a COV. Gross negligence does not arise to the definition of recklessness as a conscious disregard of a substantial known risk.47Involuntary or vehicular manslaughter, Pen C § 192(b), (c)(1), (2), is not a COV because it has a mens rea of negligence: either “without due caution or circumspection” or “criminal negligence.” See discussion regarding required intent of 192(b) under People v. Penny, 44 Cal.2d 861(1955), in the endnote discussing 192(b) as a CIMT, above. For further discussion of the intent required for a COV, including “depraved heart or extreme recklessness,” see Pen C 192(a) and its discussion of U.S. v. Draper, 84 F.4th 797, N.4 (9th Cir. 2023), United States. v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc), and United States v. Borden, 593 U.S. 420 (2021).Further, even that definition is not enough for a COV. A COV requires intentional conduct or, according to the Ninth Circuit, a specific higher degree of recklessness (depraved heart or extreme recklessness). See discussion at 192(a), which the Ninth Circuit stated is a COV because it requires that intent. | 500 |
| PC 203 | Mayhem | Yes, AF as COV48Matter of Kim, 26 I&N Dec. 912 (BIA 2017) if 1-yr or more sentence imposed. Get 364 or less on any single count. | Yes CIMT | Deportable DV crime if proof of DV-type victim. See PC 245. |
To avoid a COV, and therefore a deportable crime of DV, see PC 69, 136.1(b), 148, 236/237, 243(a), (d), (e), 243.4, 459, 591, 594. Some of these offenses can take a sentence of a year or more. See PC 207 for more on crimes of violence. See § N.4 Sentence. | 510 |
| PC 207(a), (d) | Kidnapping (a) “forcibly, or by any other means of instilling fear” (d) by force or fraud | PC 207(a), (d) have been held not to be COVs. See Advice. For (a), best practice is to plead to “fear” rather than “force.” As always, get 364 days if possible. See Note: Sentence | Ninth Circuit held that 207(a) is not a CIMT. 49The Ninth Circuit held that a conviction for kidnapping under Pen C § 207(a) is not categorically a crime involving moral turpitude because it can be committed with good or innocent intent when the defendant uses verbal orders to move a person, who obeys for fear of harm or injury if they don’t comply. See Castrijon-Garcia v. Holder, 704 F.3d 1205, 1217-18 (9th Cir. 2013), overruled on other grounds by Ceron v. Holder, 747 F.3d 773, 782 n.2 (9th Cir. 2014) (en banc). This holding was reaffirmed in Syed v. Barr, 969 F.3d 1012, 1018 (9th Cir. 2020) (holding that communicating with a minor under PC 288.3 is divisible as a CIMT because it includes 207(a), which is not a CIMT, as an intended offense, citing Castrijon-Garcia). Section 207(e) also includes very minor conduct. 207(d), by force or fraud, might be a CIMT. | Because it is not a COV, 207(a), (d) is not a deportable crime of DV. But if it is critical to avoid deportability, consider offenses such as PC 32, 136.1(b)(1) (avoid a year on each), felony 236/237 (although no precedent), 243(e), 459/460(a) or (b) or others. Child abuse: Because 207(a), (e) can be committed by simply moving an unresisting minor in violation of law, without risking harm, it should not be held to be child abuse. | PC 207(a), (d) COV. For citations and further discussion of Dimaya, Stokeling, Borden, and the definition of COV in general, see this endnote. 50Definition of a crime of violence. For immigration purposes, a crime of violence (COV) is currently defined at 18 USC § 16(a), which provides: “The term ‘crime of violence’ means—(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” “Force” has been interpreted to mean violent, aggressive, physical force. It has been held to exclude offenses that can be violated by an offensive touching—for example, Pen C § 243(e), negligent conduct (e.g., DUI or DUI with injury, absent a special intent requirement), and recklessness. But in Stokeling, discussed below, the Court held that if overcoming the resistance of the victim is an element of the offense, as in some robbery statutes, even a minor use of force can qualify. Section 207(d) (force or fraud) is not a COV. Section 207(a) (forcibly or by any means of instilling fear) is not a COV, because “fear” need not involve a threat or use of force; for example, it can involve a (wrongful) threat of arrest. Force and fear are means of committing the offense, not separate elements. Therefore, under the categorical approach no conviction of 207(a) is a COV because the statute is overbroad and indivisible. While not legally necessary, best practice is to take two additional steps to help protect your client in immigration proceedings. First, try to plead specifically to kidnapping by fear rather than force, to avoid any confusion. Second, as always, try to get 364 days or less on any single count. But if 364 is not possible, 207 should not be held a COV and is a reasonable choice for a year or more. See also case holding that carjacking by “force or fear” is not a COV under a similar basis, discussed at PC 215. Discretion: While kidnapping should avoid being a removable offense, it will be a strong negative factor for discretion and a likely bar to asylum as a PSC. Adam Walsh Act. Conviction of kidnapping a minor other than by a parent triggers Adam Walsh Act, which can block an LPR or USC from immigrating family members. Assume gov’t can use evidence of age from outside the ROC. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. | 520 |
| PC 211 | Robbery by means of force or fear | Get 364 or less to avoid AF as theft. Not an AF as a COV.52Robbery under Pen C § 211 has been held an aggravated felony (AF) as theft if a sentence of a year or more is imposed. See Matter of Delgado, 27 I&N Dec. 100 (BIA 2017); United States v. Martinez-Hernandez, 932 F.3d 1198 (9th Cir. 2019), regarding theft under 8 USC 1101(a)(43)(G). | Defenders must assume it is a CIMT. Imm advocates can consider arguments that it is not a CIMT.53Immigration advocates can consider this untried defense: While traditionally robbery has been held a CIMT, and PC § 211 has been so held, the Ninth Circuit found that Oregon robbery is not a CIMT because it can involve a temporary taking and only a small amount of force. Barbosa v. Barr, 926 F.3d 1053 (9th Cir. 2019). Like Oregon robbery, PC § 211 requires only de minimis force. See, e.g., People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 (robber tapped the victim on the shoulder to distract her and then took money from open cash register); People v. Mullins (2018) 19 Cal.App.5th 594 (robber pushed or nudged victim from in front of an ATM and took money). See finding in U.S. v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) that the use of force for Pen C § 211 can be by accident. However, while Oregon robbery explicitly includes intent to deprive temporarily, which is not a CIMT, California robbery has been held to require intent to deprive permanently, which is a CIMT. Advocates could investigate the possibility that robbery employs the definition of “theft” in PC 484 to describe the taking, and therefore robbery convictions from before Nov. 16, 2016 should not be held CIMTs as theft because the term “intent to deprive permanently” actually includes mere substantial erosion of property rights. See discussion of Silva v. Barr at PC 484, below. As always, while litigating this untried argument, advocates should investigate other defense strategies including the possibility of post-conviction relief. | Because PC 211 is not a COV,54See U.S. v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (PC 211 is not a COV); Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024), discussed above. it is not a crime of DV. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). Asylum: Even with felony probation and less than a year in custody, this is almost certainly a PSC (Particularly Serious Crime) that blocks asylum and withholding. |
To avoid an AF, avoid a sentence of a year or more on any single robbery count. Alternative pleas include: -If a year or more is needed, consider pleading instead to one or more of 243(a), 487, 459/460 or 236/237, or even 207(a), all of which should be able to take a year or more. (But note that 487 is a CIMT, and also is an AF if the conviction involved both a year sentence and loss to victim/s exceeding $10,000. See PC 487.) -To avoid a CIMT and COV, take 136.1(b)(1) and/or 496, but both require sentence of less than a year. -Long sentence: If needed, one can offer felony 236, 459 (1st or 2nd) or 487 for over a year (not an AF) and 136.1(b)(1) or 496 as the subordinate felony (so that they will get an 8-month sentence and avoid an AF). If required, use 422 as the subordinate felony. Or use PC 207(a) as the primary. Note that 487 is a CIMT and 422 is a COV and CIMT, which must be considered in light of D’s situation, but none of the above is an aggravated felony. | 530 |
| PC 215 | Carjacking | Ninth Circuit held it is not an AF as COV or theft.55See Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024) (PC § 215 is overbroad and indivisible as a COV because “fear” can be accomplished without force; in addition, it is a general intent crime where intent is to deprive the victim of a vehicle). | Defenders should assume a CIMT, although the question was remanded to the BIA56See Gutierrez v. Garland, 106 F.4th 866, 877 (9th Cir. 2024), remanding to the BIA the question of whether PC 215 is a CIMT. The BIA had not ruled on the issue in that case. and immigration advocates may argue that it is not. | Not a deportable crime of DV because it is not a COV. |
Best practice is to always obtain less than a year. However, under current Ninth Circuit law, PC 215 is not an AF even if a year or more is imposed. Do advise the client not to travel outside Ninth Circuit states without expert immigration consultation, in case other circuit courts of appeals would rule differently. While 215 is not an AF, it has other disadvantages: -As a felony CIMT, it does not qualify for the petty offense exception and it triggers other CIMT penalties, including as a bar to non-LPR cancellation. See CIMT Rules. -It will be a serious negative factor in applications for discretionary immigration status or benefits, or release on bond. -It is likely a PSC that is a bar to asylum and withholding.
| 540 |
| PC 220 | Assault, with intent to commit rape, mayhem, etc. | Get 364 or less on each count to avoid AF as COV. | Yes CIMT | Yes, DV if V has domestic relationship. |
Bad plea. Even without 1 year, assault with intent to rape might be treated as attempted rape, an AF regardless of sentence. If 1 yr or more is required, see 459/460(a) or (b) or 236/237; if that is not possible, see 243.4 or 207. If a strike is needed, one can plead to 136.1(b)(1) consecutive (with 8 months imposed) and avoid an AF. | 550 |
| PC 236, 237(a): Misdemeanor | False imprisonment (misd) | Great plea. | Not a CIMT57Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. 2010). | Not a COV, and therefore not a deportable DV offense |
This is a very good substitute plea to avoid crime of violence in DV cases Adam Walsh Act. If V is a minor, this may trigger Adam Walsh Act. See discussion at felony 236/237, above. | 560 |
| PC 241(a) | Assault | Not an AF: Not a COV, plus maximum sentence is less than 1 year | Not CIMT58See, e.g., Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989). but see Advice regarding ROC | See 243(a) | PC 241(a) Good immigration plea. (Although due to extensive case law on battery, battery might be better because imm authorities are more familiar with it.) See 243(a) Advice re ROC. | 580 |
| PC 243(a) | Battery, Simple | Not an AF: Not a COV, plus maximum sentence is less than 1-yr | Not CIMT, but see Advice regarding ROC | Not a COV so not a deportable DV offense but see Advice. To ensure not wrongly charged as a crime of child abuse, keep a minor V’s age out of the ROC. Under the categorical approach, no age-neutral offense can correctly be held child abuse even if the minor age appears in the ROC,59Deportable crime of child abuse. Conviction of a crime of child abuse, child neglect, or child abandonment is a ground of deportability under 8 USC § 1227(a)(2)(E)(i). The BIA interprets abuse, neglect, and abandonment as one category, which we will refer to as a “crime of child abuse.” To be deportable, the person must have been convicted after admission to the United States and after September 30, 1996. For further discussion of crimes of child abuse see ILRC, 2022 Case Update: Domestic Violence Deportation Ground (March 2022), https://www.ilrc.org/resources/2022-case-update-domestic-violence-deportation-ground. | PC 243(a) Good immigration plea. Because minimum conduct for 241(a), 243(a) is offensive touching and the statutes are not divisible, no conviction is a COV or CIMT for any purpose.60 The minimum conduct to commit assault under Pen C § 240 and battery under Pen C § 242 is an offensive touching, which is not a crime of violence or crime involving moral turpitude. See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) (noting that the phrase “force or violence” is a term of art that does not set out alternative types of conduct; the words are synonymous and can be committed by an offensive touching). But in case imm authorities wrongly consult the ROC instead of using the minimum conduct test, best practice is to plead to offensive touching or at least keep violence out of ROC, if possible. But this is not legally necessary to prevent a COV or CIMT. | 590 |
| PC 243(b), (c) | Battery on a peace officer, fireman etc. | To avoid AF as COV get 364 days or less on each count of 243(c). See Advice and see § N.4 Sentence. 243(b) should not be a COV. | b) does not involve injury, not a CIMT. | No other removal ground. Not DV because these victims not protected under DV laws. |
Ninth Cir held that 243(c), battery causing injury, meets a federal sentencing standard that is identical to 18 USC 16(a) (a decision that appears to be in error).62Considering a federal sentencing provision that is identical to 8 USC § 16(a), the Ninth Circuit held that that because Pen C § 243(c)(2), battery with injury on a police officer, involves a battery that results in an injury requiring medical attention, it must require force sufficient to be a crime of violence. U.S. v. Colon-Arreola, 753 F.3d 841, 845 (9th Cir. 2014). However, the court did not acknowledge or discuss the fact that the minimum conduct to commit the offense is a mere harmful or offensive touching that causes injury, even if injury was neither likely nor intended to occur. CALCRIM 945. Colon-Arreola relied on U.S. v. Laurico-Yeno, 590 F.3d 818 (9th Cir. Cal. 2010), which held that § 273.5 is a COV because it requires the direct application of force sufficient to cause injury. Id. at 845. However, Laurico-Yeno specifically noted that Pen C § 273.5 “does not penalize minimal, non-violent touchings.” Id. at 822. Colon-Arreola did not consider People v. Hayes, 142 Cal. App. 4th 175, 180 (Cal. App. 2d Dist. 2006), discussed in endnote above, or the California cases that establish that § 243(d) (which appears to have the same force requirement as § 243(c)(2)) does penalize mere offensive touching. See § 243(d). However, in U.S. v Perez, 932 F.3d 782 (9th Cir. 2019), the Ninth Circuit relied on Colon-Arreola to make the same mistake with Pen C 243(d). See endnotes to § 243(d) and see Practice Advisory on U.S. v. Perez and § 243(d) and www.ilrc.org/crimes. | 600 |
| PC 243(d) | Battery with serious bodily injury | To avoid AF as COV get 364 days or less on each count. See § N.4 Sentence. | Assume it will be held a CIMT due to the (arguably incorrect) holding in Perez that the minimum conduct involves use of violent force. | Assume this is a COV and thus a deportable DV offense if V is protected under state DV laws. See Advice. |
Although extensive California case law establishes that 243(d) can be committed with an offensive touching, the Ninth Cir held that this is not true and that 243(d) is a COV because it requires force sufficient to directly cause injury. US v Perez, 932 F.3d 782 (9th Cir. 2019). Petition for rehearing and reconsideration was denied. Seek alternate plea where needed; consider misd or felony PC 32, 136.1(b)(1), 236/237, 243(a) or (e), 459/ 460(a) or (b), 591, 594, or even 207 or 243.4. For PC 32 and 136.1(b)(1), do not plead to over 364 days to avoid a potential AF finding. Imm advocates should contest the Perez holding and preserve the issue on appeal, to bring it again before the Ninth Circuit. Critical evidence was not submitted in the original Perez case. Contact the ILRC for assistance. For arguments that Perez is wrongly decided; see endnote.64 In U.S. v. Perez, 932 F.3d 782 (9th Cir. 2019) the court found that Pen C § 243(d) is categorically a COV, because the defendant did not demonstrate a “realistic probability” that 243(d) would be used to prosecute an offensive touching that caused injury, as opposed to use of violent force that caused injury. A petition for reconsideration and for rehearing en banc in Perez was denied. Defenders and advocates who are evaluating the effect of past 243(d) convictions should expect it to be held a COV but keep in mind that this could change. | 610 |
| PC 243(e)(1) | Battery against spouse | Not a COV but see Advice re ROC. | Not a CIMT, but see Advice re ROC | Not a deportable crime of DV because not a COV. |
Excellent immigration plea: extensive case law holds that because minimum conduct is an offensive touching, it is never a COV or CIMT.65Section 243(e), battery against a spouse, is not a COV. It uses the same definition of battery as § 243(a), which is not a COV; see endnote on § 243(a), above. Multiple cases have found that Pen C § 243(e) can be committed by an offensive touching, which is neither a COV nor a CIMT. See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006). While Matter of Sanudo found that § 243(e) was divisible depending upon the level of violence shown in the record of conviction (ibid.), in fact the statute is not divisible under the standard set out by the Supreme Court in Mathis and Descamps, and must be evaluated solely based on the minimum conduct ever prosecuted. See, e.g., discussion in U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (after Descamps, supra, the resisting arrest statute is no longer divisible because it is not phrased in the alternative; if the minimum conduct is not a crime of violence, no conviction of the offense is a crime of violence). See generally Matter of Dang, 28 I&N Dec. 541 (BIA 2022) (a spousal battery offense that reaches an offensive touching is categorically not a crime of violence under 18 USC § 16(a), including under Stokeling). Therefore, no conviction of § 243(e) is a COV or CIMT, for purposes of deportability, inadmissibility, or eligibility for relief. See more on the categorical approach. See also 236. Because this is not a COV, D can accept a stay-away order or similar probation conditions without 243(e) becoming a deportable DV offense. But if in the future a court finds D violates any DV stay-away order, this will make D deportable; see Advice at 273.6. Just in case imm authorities wrongly consult the ROC instead of using the minimum conduct test, best practice is to keep violence out of ROC and/or plead to offensive touching, when that is possible. But this is not legally necessary to prevent a COV or CIMT. This has been treated as a significant misd for DACA. See PC 25400. | 620 |
| PC 243.4(a) and (e) | Sexual battery | Try very hard to get 364 or less on each count in order to surely avoid an AF, but arguably this is not a COV. See Advice. | CIMT, although imm advocates may try to argue against this.66Pen C. § 243.4 has been held a CIMT. Gonzalez Cervantes v. Holder, 709 F.3d 1265 (9th Cir. 2013). In his dissent, Judge Tashima noted that 243.4(e) has been expanded to include cases in which the intent was to insult, and should be held to reach non-turpitudinous conduct, citing In re Shannon T., 50 Cal. Rptr. 3d 564 (Ct. App. 2006), In re Carlos C., 2012 WL 925029 (Cal. Ct. App. 2012). | This might be (wrongly) charged as a COV under Stokeling, so if possible get a different plea (e.g., 236.1(b)(1) or 136.1(b)(1), with less than a year, 459, or 594) if the V and D share a protected relationship, in order to avoid a charge of a deportable crime of DV. Note that 243(d) has been held to be a COV. See Advice for alternate pleas and further discussion. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). Having to register as a sex offender is not itself a removal ground. However, a state conviction for failure to register could lead to deportability; see PC 290. | PC 243.4(a) and (e) Good substitute plea to avoid the AFs of sexual abuse of a minor or rape, or deportable child abuse. See also PC 136.1(b)(1), 236/237(a), 243(a), (e), 261.5(c), 289(e), 273a(b), 288.3 Ninth Cir in the past held 243.4 is not a COV under 18 USC 16(a) because the touch can be ephemeral, or the restraint imposed by psychological means, including the threat of arrest, that do not involve any force. Immigration advocates have a strong argument that for this reason, it also is not a COV under the 2019 Stokeling decision. 67Pen C § 243.4 should not be held a COV. The Ninth Circuit held that the minimum prosecuted conduct to commit § 243.4 does not meet the definition of crime of violence under a federal definition identical to the one used in 18 USC § 16(a), because the touching can be ephemeral and not by force, and the restraint can be psychological and not threatening force—for example, by threat of arrest. See, e.g., U.S. v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir. 2005) (“[T] he restraint need not be physical and can be accomplished by words alone, including words that convey no threat of violence,” citing People v. Grant (1992) 8 Cal. App. 4th 1105, 10 Cal. Rptr. 2d 828, 830-33 , where § 243.4 conviction was upheld when defendant restrained trespassing victim by saying he worked with the police and the owner of the property); see also U.S. v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. 2010) (neither Pen C 243.4 nor 289(a)(1) are COVs under 18 USC § 16(a)). While Lopez-Montanez found that felony § 243.4 meets a different definition of COV at 18 USC § 16(b), the Supreme Court held that the § 16(b) definition is unconstitutionally vague and no longer can be applied. Sessions v Dimaya, 138 S Ct 1204 (2018). However, because the issue has not yet been litigated, best practice is to try to get 364 or less on each count of 243.4 to be sure to avoid an AF. If 1 yr is required, offer, e.g., felony 459/460(a), 236/237, or even 207 with prison time plus misd 243.4. If a strike is needed, offer 136.1(b)(1) as a consecutive or subordinate offense, with an 8-month sentence. Misd is a “significant misdemeanor” for DACA. See PC 25400. Adam Walsh Act. If V is a minor, conviction can prevent a US or LPR from immigrating family members in the future. Assume gov’t can use evidence of age from outside the ROC. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. | 630 |
| PC 243.9(a) | “Gassing” of a peace officer or employee by a detainee | Probably not COV; includes “placing” excrement on someone | The intent is more to offend and annoy rather than cause serious injury, so arguably not a CIMT | No other removal ground | PC 243.9(a) Gassing is defined at PC 243.9(b) as placing or throwing feces, urine, or bodily fluids that touch another person’s skin. | 640 |
| PC 245(a)(1)-(4) and (c) | (a) Assault with (1) a deadly weapon; (2) a firearm; (3) assault weapon or other specified firearm; or (4) force likely to produce great bodily injury (c) is when V is a peace officer or fireman at work | A Ninth Circuit panel held 245(a)(1) is not a COV. But because the case could go en banc, defenders still should seek 364 days or less to avoid a possible AF. See Advice. | Ninth Circuit held 245(a) is a CIMT.68The Ninth Circuit en banc reversed past precedent and remanded to the BIA to decide in the first instance whether § 245(a)(1) is a crime involving moral turpitude, in light of changes in state and federal law. Ceron v. Holder, 747 F.3d 773 (9th Cir 2014) (en banc). The BIA reaffirmed its opinion that all subsections of § 245(a) are CIMTs. Matter of Wu, 27 I&N Dec. 8 (BIA 2017). Subsequently the court deferred to the BIA and held that essentially all of § 245(a) is a CIMT, when it deferred to the BIA’s holding that a previous version of 245(a)(1), which had included what now is in 245(a)(1)-(4), was categorical a CIMT. Safaryan v. Barr, 975 F.3d 976 (9th Cir. 2020) (defers to BIA’s holding that former Pen C § 245(a)(1) which prohibited “assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury” is categorically a CIMT); see also Matter of Aguilar-Mendez, 28 I&N Dec. 262 (BIA 2021) (Pen C § 245(a)(4), assault with force likely to produce great bodily injury, is categorically a CIMT). | Crime of DV. For now, defenders should assume conservatively that noncitizens should not plead to 245(a) if the victim is protected under state DV laws. See Advice. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). Firearms. Because (a)(2) uses the definition of firearm at PC 16520(a), no conviction for (a)(2) is a deportable firearms offense. But (a)(3) is specifically for machineguns and assault weapons and thus has no antique firearm defense. See PC 246. To avoid any error, a safer plea is to 245(a)(1) or keep ROC clear of evidence that offense was (a)(2) or esp. (3). |
COV. The Ninth Circuit held that PC 245(a)(1) is not a COV, because it can be committed by recklessness. US v. Gomez (9th Cir. 9/4/2024). Arguably this applies to all subsections of 245(a).69In Borden v. United States, 593 U.S. 420, 429 (2021) the Supreme Court had held that a COV “demands that the perpetrator direct his action at, or target, another individual”, and because “[r]eckless conduct is not aimed in that prescribed manner,” it does not satisfy the element. The government might seek rehearing en banc, so for now defenders should conservatively assume 245(a) is a COV and therefore avoid a year or more imposed, and a DV-type victim, until this is resolved. Removal defense advocates should cite Gomez and its reasoning and make all possible arguments. To avoid a possible deportable crime of DV: -Plead to a COV such as PC 243(d), 422, or (potentially) 245, but against a V without protected status (e.g., neighbor, police, ex-wife’s new boyfriend. Get 364 days or less imposed on each count. -Plead to a non-COV, e.g., PC 32, 136.1(b)(1), 243(a), 243(e), 236/237, 459, 591, 594 against a V with protected status. Or plead to PC 69, 148. Note that PC 32, 136.1(b)(1), 69, and 148 must get less than a year imposed to avoid becoming an AF as “obstruction of justice.” If a strike is needed, along with 136.1(b)(1) and residential burglary, consider Pen C 207. -Do not plead to a COV against a protected party and rely on the fact that a vague ROC does not ID the party as an immigration defense. The law is volatile in this regard. If that was done in a prior conviction, immigration counsel should see below endnote for defenses in removal cases. For further discussion and citations, see this endnote. 70Deportable crime of domestic violence. For further discussion see ILRC, Case Update: Domestic Violence Deportation Ground (2022) at www.ilrc.org/crimes-summaries. Misd is a “significant misdemeanor” for DACA if committed against DV-type victim, but PC 1203.4 might eliminate. See PC 25400. [i] In Borden v. United States, 593 U.S. 420, 429 (2021) the Supreme Court had held that a COV “demands that the perpetrator direct his action at, or target, another individual”, and because “[r]eckless conduct is not aimed in that prescribed manner,” it does not satisfy the element. In U.S. v. Gomez (9th Cir. 2024), the Ninth Circuit held that Pen. C § 245(a)(1) (assault with a deadly weapon) is not a COV under Borden, noting that because “California’s assault statute sweeps in reckless uses of force, as defined in Borden, a conviction under § 245(a)(1) is not a categorical match with the elements clause and does not constitute a crime of violence.” See U.S v. Gomez, No. 23-435, 2024 WL 4033084 at *7 (9th Cir. Sept. 4, 2024). This reasoning ought to apply to all sections of Pen C § 245(a), as the mens rea requirement for the section is consistent. See CALCRIM 875. The court found that prior decisions that had held 245(a) to be a COV, such as U.S. v. Vasquez-Gonzalez, 901 F.3d 1060 (9th Cir. 2018), U.S. v. Jimenez-Arzate, 781 F.3d 1062 (9th Cir. 2015), were in conflict with the Supreme Court’s decision in Borden, which set out a more expansive definition of recklessness. See Gomez, supra, at *7. (Both Borden and Gomez considered a federal sentencing definition of COV that is identical to 18 USC § 16(a).) At this writing it is not known whether Gomez might be reheard en banc. Therefore, criminal defenders must assume that a conviction for Pen C § 245(a) is a COV until the law is more settled, while immigration advocates can argue that no conviction under Pen C § 245(a) is a COV. [ii] Deportable crime of domestic violence. For further discussion see ILRC, Case Update: Domestic Violence Deportation Ground (2022) at www.ilrc.org/crimes-summaries. To prove that an offense is a deportable “crime of domestic violence,” (“crime of DV”), ICE must prove that the offense is a crime of violence (COV) under 18 USC § 16(a), and that the victim and defendant share a qualifying domestic relationship as set out in the deportation ground. That is defined as, among other things, any relationship protected under domestic violence laws of the state. See INA § 237(a)(2)(E)(i), 8 USC § 1227(a)(2)(E)(i). In California, this includes former dates or former co-habitants. There is conflicting precedent about what evidence may be used to prove this relationship. Defenders should conservatively assume that ICE will be able to use any evidence, including testimony or other evidence from outside the record of conviction. This is the BIA’s view. See Matter of H. Estrada, 26 I&N Dec 749 (BIA 2016). Defenders should not plead to a COV where the defendant and victim actually share a relationship, and trust that by keeping the record of conviction vague as to the victim the conviction will not be held a crime of DV. Instead they should either plead to a COV with a specific, non-protected victim (the neighbor, police officer, ex-wife’s new boyfriend, etc.); to a COV against property; or if there is a protected relationship, plead to a non-COV (see suggestions below). If pleading to a COV, do not take a sentence of one year or more on a single count, or it will become an aggravated felony. In dealing with a prior conviction where this was not done, removal defense advocates can cite current Ninth Circuit law holding that the protected relationship can be proved only with evidence from the reviewable record of conviction (charge pled to, plea colloquy or written agreement, judgment, and factual basis for the plea). See Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. 2006). The risk here is that while this is good law now, in the future the Ninth Circuit may agree to adopt the BIA’s rule in Matter of Estrada, as some other federal courts of appeals have. There are many offenses—ranging from misdemeanors to strikes—that are appropriate substitutes in a DV situation and that are not COVs, and that therefore will not create a deportable crime of domestic violence. A defendant could plead to committing the following against her husband without it being a deportable crime of DV: felony or misdemeanor §§ 32, 136.1(b)(1), 243(e), 460(a), 594, and probably 236/237 and 207. The Ninth Circuit (wrongly) held that 243(d) is a COV; see that section. The misdemeanor/ felony/strike designation does not matter, but only some of these offenses can take a sentence imposed of a year or more. See individual offenses in the chart. To cause deportability under this ground, the conviction must be from on or after September 30, 1996 and after the person was admitted into the United States. | 650 |
| PC 246 | Willfully discharge firearm at inhabited building, etc. | Recklessness is not a COV, so PC 246 is not an AF even if a year or more is imposed. Still, best practice always is to try to get 364 days or less. See Advice. | Yes, assume CIMT.71See Matter of Muceros, (BIA 2000), Indexed Decision, supra. | Not a deportable firearms offense; see Advice. |
Firearms deportation ground. The Ninth Circuit held that no conviction of an offense that uses the definition of firearm at PC 16520(a) (formerly 12001(b)), triggers the firearms deportation ground or is a firearm aggravated felony, due to the antique firearms rule.72Conviction of an offense involving a “firearm” as defined under federal law can trigger deportability under the firearms ground. 8 USC § 1227(a)(2)(C). In general, if the federal definition of firearm is met, some state firearms offenses are aggravated felonies, including trafficking in firearms, and some state analogues to federal firearm offenses, such as being a felon in possession, also are. 8 USC § 1101(a)(43)(C). However, the federal definition of firearm specifically excludes an antique firearm, defined as a firearm made in 1898 or earlier plus certain replicas. 18 USC § 921(a)(3), (16). Under the categorical approach, conviction of a California firearms offense does not come within the firearms deportation ground, and is not a firearms aggravated felony, if antique firearms ever have been prosecuted under that statute—even if a non-antique firearm was used in the defendant’s own case. U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). Significantly, the Aguilera-Rios rule applies to any conviction under any California statute that uses the definition of firearm at § 16520(a), formerly § 120001(b). Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (“We hold that Aguilera-Rios applies to any California statute based on the definition of ‘firearm’ formerly appearing at § 120001(b).” Note that in 2012, the definition of firearms at § 12001(b) was moved to § 16520(a), with no change in meaning PC 246 uses that definition of firearm. Recklessness and COV. Courts of appeals have long held that a crime of violence requires more than reckless intent; thus the Ninth Cir held that 246 is not a COV.73In Covarrubias Teposte v. Holder, 632 F.3d 1049, 1053-56 (9th Cir. 2011), the Ninth Circuit held that because PC 246 can be committed with “purely reckless conduct,” it is not a crime of violence under 18 USC § 16(b)). The court noted that the offense can be committed by shooting very close to a building but not at the building, and the building did not need to be occupied. See endnote at Advice to Pen C 207 for discussion of COV. Consider PC 246.3. If a strike and/or prison is required, consider felony 594 with 136.1(b)(1) consecutive; 459/460(a) or (b) with prison sentence. Misd is a “significant misdemeanor” for DACA as a firearms offense, but 1203.4 might help; see note at PC 25400. | 660 |
| PC 246.3 (a), (b) | Willfully discharge firearm or BB device with gross negligence | Not an AF as COV, but best practice always is to get 364 days or less on any single count if possible. | Should not be CIMT due to gross negligence but might be so charged | Not deportable firearms offense; see PC 246. For further safety, plead to BB device. |
The Ninth Circuit held that 246.3, committed by gross negligence, is not a COV.75See U.S. v. Coronado, 603 F.3d 706 (9th Cir. 2010) finding that Pen C § 246.3 is not a COV under 18 USC § 16(a) (or even under § 16(b), which has since been struck down; see Advice to Pen C § 207). “Gross negligence” in § 246.3 does not even require recklessness, a conscious disregard of a known risk. See, e.g., People v. Overman (2005) 126 Cal.App 4th 1344. Still, as always, it is best to get a sentence of 364 or less. Misd is a “significant misdemeanor” for DACA but 1203.4 might help (or advocates can explore arguments relating to BB guns as opposed to other firearms). See note at PC 25400. | 670 |
| PC 261, 286(i) (Not 261(a)(4)) | Rape | Yes AF, regardless of sentence.76 See, e.g., Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000), finding that 261(a)(3) is the AF rape. | Yes CIMT | To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). |
See PC 136.1(b)(1), 236/237, 243.4, PC 460(a) or (b), and probably 243.4 or 207 can take a sentence of more than 1 year without becoming an AF. Adam Walsh Act. If V is a minor, conviction can prevent a USC or LPR from immigrating family members in the future. Assume gov’t can use evidence of age from outside the ROC. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. | 680 |
| PC 261.5(b), (c) | 261.5(c) is intercourse with a minor under age 18, if D is at least 3 years older. 261.5(b) is the same with a minor under age 18 but no requirement of age difference- just that D and V must be within 3 years of each other. | Not an AF. The Supreme Court held that 261.5(c) is not an AF as sexual abuse of a minor (SAM). Neither is it a COV. The same is true of 261.5(b). See Advice for citations. | Not a CIMT. Ninth Circuit held (c) is not a CIMT, and neither is it a CIMT under the BIA’s legal test. Same is true for 261.5(b). See Advice for citations. | Deportable child abuse. ICE likely will charge 261.5(c) as a deportable crime of child abuse, citing Matter of Aguilar-Barajas (2021). For now, defenders should try to avoid 261.5(c) if the D needs to avoid a deportable offense. But see Advice re Loper-Bright. If nothing else is available, a plea to 261.5(b) might have a better chance than (c). Advocates in removal proceedings should argue to the Ninth Circuit that 261.5(b) and (c) are not deportable child abuse. This argument has a far higher chance of winning now that the Ninth Circuit no longer will defer to BIA decisions under Chevron. See Advice. Adam Walsh Act. When V is a minor, conviction may prevent a USC or LPR from immigrating family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. |
See endnote for discussion and citations.77Pen C § 261.5(b), (c). This discussion will refer to 261.5(c) (minor under age 18 and perpetrator at least three years older) because that is the subject of precedent decisions, but note that 261.5(b) (minor under age 18 and perpetrator within 3 years of minor’s age) is a less serious offense in terms of age difference, and so might do better than 261.5(c). Crime of child abuse. The BIA likely will hold that 261.5(c) is a deportable crime of child abuse under Matter of Aguilar-Barajas (BIA 2021). Aguilar-Barajas can be interpreted to mean that in every case, consensual sex between a person aged 18 or older and one who is age 17 or younger is child abuse. If D needs to avoid becoming deportable (e.g., D is an LPR or is an undocumented person who may apply for non-LPR cancellation), defenders must avoid this plea. But removal defense advocates have strong arguments; see section below. Alternatives. Consider a plea to felony or misd PC 32 or 136.1(b)(1) with less than a year’s sentence, or to 207, 236/237, 243(a) or (e), 272, 273a(b), 415, 459 (1st or 2nd degree) or some combination – and see PC 288.3, discussed next. With a misd charge, try hard to get pre-trial diversion. Currently 647.6 and 288(c) are safe pleas, but it is possible they would be treated differently outside the Ninth Circuit. Consider PC 288.3 with intent to commit 287(b)(1) (oral sex) or 289(h) (penetration) with a minor under age 18. Conviction for 288.3 is not a deportable crime of child abuse because it can involve a police officer posing as a child, which the BIA found does not qualify. The intended offenses are similar to 261.5(c), and so are not an AF or CIMT. See 287, 288.3. If nothing else is possible, a plea to 261.5(b) rather than (c) might help defeat a charge of child abuse or CIMT. Removal Defense Advocates. While there is no guarantee, it is quite possible that if presented with a case the Ninth Circuit will hold that 261.5(c) is not a deportable crime of child abuse. In Loper Bright (2024), the Supreme Court held that federal courts will no longer give Chevron deference to administrative agencies like the BIA in cases like this. As the dissent points out, Aguilar Barajas is poorly reasoned and inconsistent with the Supreme Court’s Esquivel-Quintana decision. With no requirement to defer, the Ninth Circuit ought to reject it. See discussion in the endnote at the top of this column. DACA. 261.5(b), (c) might or might not be held a bar to DACA as a significant misdemeanor “sexual exploitation”. See DACA discussion at PC 25400. | 690 |
| PC 261.5 (d) | Sex with minor under age 16, if D is at least age 21 | Defenders should assume 261.5(d) is an AF as SAM based on implication in SCOTUS Esquivel case. Immigration advocates can cite existing Ninth Circuit precedent to the contrary. See Advice. | Defenders assume 261.5(d) may be held CIMT in future and avoid it. It would be a CIMT under the BIA standard, and based on the Esquivel discussion. But immigration advocates can cite existing Ninth Circuit precedent that it is not. | Assume deportable crime of child abuse. See discussion of Adam Walsh Act at 261.5(c), above. |
Bad plea. See endnote for discussion and citations.78Pen C § 261.5(d) as an AF. Counsel should try hard to avoid § 261.5(d), since the Ninth Circuit may reconsider its prior favorable treatment of it in light of Esquivel-Quintana. The Ninth Circuit held that § 261.5(d) is not an AF as sexual abuse of a minor (SAM), and advocates in removal proceedings should cite this. Pelayo-Garcia v. Holder, 589 F.3d 1010, 1016 (9th Cir. 2009). Defenders, however, must assume conservatively that at some point the Ninth Circuit may change its analysis based on the implication of the ruling in Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017). In Esquivel-Quintana the Supreme Court held that where a sex offense is based solely on the age of the participants, the generic definition of SAM does not include sex with a minor who is age 16 or older. It found that Pen C § 261.5(c), which includes minors age 16 or older, is not SAM. The Ninth Circuit might decide that because § 261.5(d) is limited to minors younger than age 16, it should reverse itself and find that 261.5(d) is SAM. See discussion in ILRC and NIPNLG/IDP practice advisories on Esquivel, cited in the § 261.5(c) endnote, above. Instead, try hard to plead to alternatives discussed at 261.5(c), if necessary with an additional offense, e.g., 136.1(b)(1) or other. In Esquivel-Quintana (2017) the Supreme Court held that 261.5(c) is not SAM because consensual sexual intercourse with a minor age 16 or older is not inherently abusive. Courts may well draw the conclusion that intercourse with a minor under age 16 is abusive. Thus while current Ninth Circuit precedent holds 261.5(d) is not SAM or a CIMT, this could change and therefore defenders should avoid this plea. Consider 261.5(c) and/or an age-neutral offense such as 136.1(b)(1), 236/237, 243(a), (d), (e), 243.4, 245, 273a(b) or if necessary (a), 288(c), 314, 459/460(a) or (b), 647.6. D can take sex offender registration on these without the offense becoming SAM. Some but not all of the above offenses have other immigration consequences, or need to avoid a year or more sentence; check the chart for each offense. Immigration advocates in removal proceedings will cite current good Ninth Circuit precedent, but should seek other defense strategies as well. To ensure that age-neutral offenses listed above are not wrongly charged as deportable crimes of child abuse, do not let ROC indicate minor age. This is likely a significant misdemeanor for DACA. See DACA discussion at PC 25400. | 700 |
| PC 266 | Pimping and pandering | Likely charged as AF. See Advice. | Yes CIMT | Deportable child abuse if ROC shows person under age 18; plead to the second clause that is not age specific. |
AF: This statute covers a range of conduct. To prevent an AF as sexual abuse of a minor, plead specifically to conduct with persons age 18 or over. To try to prevent AF as “owning or managing a prostitution business,” plead to attempting to persuade one adult to engage in carnal relations, but this remains a very dangerous plea.79Regarding the aggravated felony sexual abuse of a minor (SAM), if Pen C § 266 is found to be divisible among the types of conduct, a record of conviction that states that the person recruited was over the age of 18 will prevent the offense from being held an aggravated felony as SAM. If the statute is not divisible, no conviction is SAM, regardless of information in the record of conviction.See explanation of the categorical approach at ILRC, How to Use the Categorical Approach Now (2021). | 710 |
| PC 270 | Failure to provide for child | Not AF. | Should not be held CIMT: no element of harm or destitution | Should not be deportable crime of child abuse; does not require likely risk of harm. See PC 273a(b). |
While the minimum conduct does not appear to be CIMT or child abuse, where possible include in ROC that child was not at risk of being harmed or deprived. | 720 |
| PC 270.1 | Failure to get child to school | Not AF. | Should not be held CIMT; see Advice. | Should not be deportable crime of child abuse; see PC 273a(b) |
While an age-neutral offense is preferable, this ought not to be charged as child abuse, neglect, or abandonment as defined by BIA. There is no bad intent and can be committed by failure to “reasonably” encourage truant to go to school | 730 |
| PC 272 | Contribute to the delinquency of a minor | Not AF, although as always try to keep ROC free of lewd acts | Not CIMT80See, e.g., Matter of V. T., 2 I&N Dec. 213, 216-17 (BIA 1944), holding that the predecessor statute, Cal W&I C § 702, is not a CIMT because it includes a wide range of conduct that is not turpitudinous. | Should not be deportable child abuse because it includes mild conduct, but there is no precedent. See Advice. |
Because PC 272 can involve exposing minor to only mild harm, it does not meet the BIA’s definition of child abuse.81In Matter of Soram, 25 I&N Dec. 378 (BIA 2010) the BIA did not provide a definition of child abuse, but it stated that a Colorado child endangerment statute is a crime of child abuse because the defendant must have recklessly, unreasonably, and without justifiable excuse placed a child where there was a “reasonable probability” that the child “will be” injured, meaning a threat to the child’s life or health, even if the child was not actually harmed. Conversely, the BIA has stated that Pen C § 273a(b) is not a deportable crime of child abuse because the minimum conduct to commit the offense does not require a sufficiently high likelihood that harm will result. Matter of Mendoza Osorio, 26 I&N Dec. 703, 710 (BIA 2016). Penal C § 272, like Pen C § 273a(b) does not require a likelihood that harm will result. See CALCRIM 2980. Penal Code § 272 has been used to, e.g., prosecute the sale of liquor to a minor without requiring ID. People v. Laisne, 163 Cal. App. 2d 554 (Cal. App. 3d Dist. 1958). While this is a good alternative to more harmful offenses involving a minor, to be sure to avoid a crime of child abuse, plead to an age-neutral offense. Adam Walsh Act. If V is a minor and sex was involved, it’s possible that a conviction can prevent a USC or LPR from immigrating family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. | 740 |
| PC 273d | Child, Corporal Punishment | Get 364 days or less to avoid an AF as COV.82See Olea-Serafina v. Garland, No. 20-72231 (9th Cir. 2022) (holding that 273d(a) is categorically a crime of violence). | Yes CIMT | Deportable crime of child abuse. See Advice |
To avoid child abuse, plead to age-neutral offense with no minor age in the ROC (although even if minor age appears in ROC, it still should not be a crime of child abuse; see endnote at PC 243(a)). Consider PC 32, 136.1(b)(1), 243, 236/237, 459, etc., with less than 1 yr if needed, and 273a(b). | 760 |
| PC 273.5 | Inflict Spousal Injury | Get 364 days or less on any single count to avoid AF as a COV.83See, e.g., Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1055-56 (9th Cir. 2010); U.S. v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) holding that § 273.5 is a deportable crime of domestic violence. Advocates may investigate arguments that § 273.5 can be committed by an offensive touching and thus is not a COV, an uphill battle. See § N.4 Sentence. Imm counsel may try to contest the COV designation | Ninth Circuit held not CIMT if V is former co-habitant,84Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009); Cervantes v. Holder, 772 F.3d 583, 588 (9th Cir. 2014) (“Our precedents make clear that although § 273.5(a) is not categorically a CIMT, it is a divisible statute for which a conviction under one portion of the statute (corporal injury against a spouse) will qualify as a CIMT, while conviction under other subsections (for example, corporal injury against a cohabitant) will not.”) but see Advice for suggestions of better pleas for avoiding a CIMT. | Yes, deportable crime of DV (even if V is a former co-habitant). |
273.5 always is a deportable crime of DV,but might avoid being a CIMT. To avoid COV and DV, see PC 32, 136.1(b)(1), 69, or 148 (with 364 days or less); 236/237, 243(a), 243(e), 459 1st or 2nd, 591, 594; do not plead to 243(d) or 422; check for updates on PC 245(a)(1). D can accept batterer’s program, stay-away order, and other probation conditions on these. (But a subsequent judicial finding of violating a DV stay-away order will make D deportable; see 273.6.) Removal defense advocates can consider arguments that 273.5 is not a COV, and thus not a crime of DV or aggravated felony. See discussion at PC 245. CIMT.The Ninth Circuit held that 273.5 is not a CIMT if V is a “cohabitant” and the statute is divisible, so if possible plead specifically to co-habitant or ideally former co-habitant. More secure pleas to avoid a CIMT include 136.1(b)(1), 236, 243(a), (e), 459, 591, 594. But in analyzing past 273.5 convictions, do not assume that it is a CIMT even if the plea stated that the spouse was the victim. Arguably 273.5 is not divisible between victim types, and therefore no conviction is a CIMT.85Section 273.5 is divisible only if, in order to find the defendant guilty, in every case a jury must unanimously agree as to the type of relationship. (See ILRC, How to Use the Categorical Approach Now (2021) for more information.) Immigration advocates can explore arguments that § 273.5 is not divisible as to the type of relationship. CALCRIM 840 does not require unanimity as to the type of relationship, and there do not appear to be state cases holding that this is required. A Ninth Circuit panel held that § 273.5 is divisible (Cervantes v. Holder, 772 F.3d 583, 588 (9th Cir. 2014)), but Judge Bybee did not undertake any divisibility analysis based upon elements and the requirement of jury unanimity. After Cervantes was published, the Supreme Court made it even more clear that this must be undertaken in order to establish whether a statute is truly divisible. See discussion of Mathis v. United States, 579 U.S. 500, 518 (2016) and the categorical approach a at ILRC, How to Use the Categorical Approach Now (2021). Immigration advocates should assert this argument as needed. Remember that this argument only goes to CIMTs; 273.5 still will be found a COV and crime of DV. Misd conviction is a “significant misdemeanor” for DACA, but 1203.4 might erase it; see note at PC 25400. | 770 |
| PC 273.6(a)-(c) | Violation of a Protection Order (misdemeanor) | 273.6(a), (b), (c) are not AFs as COV. Among other reasons, a misdo has a maximum 180 or 364 day sentence | 273.6(a) and (c) should not be held CIMTs because they can be committed by minor, technical violations without threat or harassment (altho they may cause deportability under the DV ground; see next column).86As an example of a minor violation that should not be held a CIMT, see Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009) (violation of a DV “stay away” order based on walking a child halfway up the driveway after visitation rather than leaving him at the curb as agreed). While that should not be a CIMT, it was held a deportable judicial finding of a violation of a DV protective order. Authorities might hold 273.6(b) a CIMT because it requires injury. Counsel should try to avoid it or at least create a careful record of conviction. See Advice. | DV deportation ground. 273.6(a)-(c) is a deportable judicial finding of a violation of a DV protection order, if the order was pursuant to Cal Fam C 6320, 6389 or otherwise a stay-away or similar order protecting against threats, injury, or repeat harassment of a DV relation. To prevent this admit violation of a specific order or portion of an order that is not a DV stay-away provision. A vaguely phrased order will not protect the person. The categorical approach does not apply here, so ICE can use any evidence to show that the finding of violation of an order related to a violation of a DV stay away order. See Advice for alternatives such as PC 166(a)(1)-(3), plea to a new offense, or plea to violation not related to a DV stay-away order. | PC 273.6(a)-(c). See further discussion at PC 166 PC 273.6(b) as a CIMT. Defense should avoid (b) if avoiding a CIMT is important. While there is no precedent, immigration authorities may hold 273.6(b) a CIMT because it requires intentional conduct (violating the order in any way) that results in injury. If (b) can’t be avoided, try to create a record showing that the injury was not intended and was accidental or caused by negligence or recklessness, which is not a CIMT.87Negligent conduct never is a CIMT, and reckless conduct is a CIMT only if the offense has as an element conscious disregard of a known risk of imminent death or serious injury. Matter of Leal, 26 I&N Dec. 20 (BIA 2012). Section 273.6(b) does not require that mens rea. Or, if possible, given the record, identify the victim as a co-habitant. The Ninth Circuit held that 273.5 is not a CIMT if V is a cohabitant,88See Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) and discussion at PC § 273.5. and arguably that applies to 273.6(b). Deportable DV finding. For further discussion see PC 166, this endnote89Defenders should assume that a noncitizen is deportable under 8 USC § 1227(a)(2)(E)(ii) if a civil or criminal court finds that they violated in any way a portion of a DV order (probation requirement, family court order, etc.) intended to protect against threats, injury, or repeat harassment. The violation must be after admission and after 9/30/96. A finding of even a technical violation of a DV stay-away order (e.g., walking child up the driveway rather than leaving them at the curb after visitation) can trigger deportability under INA 237(a)(2)(E)(ii). See PC 166 for further discussion. If you must plead to 273.6 involving a DV relationship, some options are: -Plead to a specific violation of an order that does not meet this definition, such as failure to pay child support, follow visitation times, attend classes; miss probation meeting; or -Plead to misconduct with a judge,166(a)(1)-(3); or -Plead to a new offense that does not involve violation of any order, e.g., PC 415, 370, trespass, 236/237, 243(a) or (e), 136.1(b)(1), 459, 594, etc. While it’s optimal to sanitize the record of a charge of violating an order, and/or identify a V not listed in the order or a victimless crime, if that is not possible, still plead to any non-deportable offense. | 780 |
| PC 281 | Bigamy | Not AF | Should not be CIMT, but see Advice | No other removal ground. |
Should not be a CIMT despite the availability of a defense of lack of guilty knowledge,90As written, Pen C § 281 does not require the prosecution to prove any guilty knowledge or bad intent on the part of the defendant; it is a strict liability offense. Case law has added as an affirmative defense the defendant’s reasonable belief that the first marriage had ended. People v. Vogel (1956) 46 Cal.2d 798, Forbes v. Brownelle, 149 F.Supp. 848 (D.D.C. 1957). However, the existence of an affirmative defense should not be held to add the element of guilty knowledge to the statute under the categorical approach, so no conviction for § 281 should be held a CIMT. but counsel should assume it might be charged as one and seek another offense if avoiding CIMT is crucial. | 790 |
| PC 286(b), 287(b), 289(h), (i) For analysis of PC 286(f), go to PC 261(a)(4) | Sexual conduct with a minor: 286(b)(1), 287(b)(1), 289(h) prohibit respectively sodomy, oral sex, and penetration with a person under age 18. PC 286(b)(2), 287(b)(2), 289(i) prohibit this with a person under age 16, where D was at least age 21. No element of coercion | Appears that some sections are AFs and some are not.91SAM and PC 286, 287, 289. The aggravated felony sexual abuse of a minor (SAM) is evaluated under the categorical approach, based on the minimum conduct required for guilt under the statute. To determine the consequences of PC §§ 286, 287, 289 with a minor (respectively sodomy, oral sex, and penetration), we consider PC § 261.5 (sexual intercourse with a minor), because the elements are similar and there is extensive precedent on immigration consequences of PC § 261.5. PC 286(b)(1), 287(b)(1), 289(h) are not AFs as SAM because minor is under age of 18, based on Supreme Court ruling on the similar 261.5(c). Assume 286(b)(2), 287(b)(2), 289(i) will be held AFs as SAM under S.Ct decision because they require a minor under age 16 and perpetrator age 21 or older (although an older Ninth Cir. decision held otherwise). See endnote above and see PC 261.5(c), (d) | Appears that some sections are CIMTs and some are not.92CIMT. Sections 286(b)(1), 287(b)(1), and 289(h) should not be held to be a CIMT because they involve sexual conduct (sodomy, oral sex, penetration) with a person under age 18. The BIA held that sexual intercourse with a minor is a CIMT if the minor (a) is under the age of 14, or (b) is under the age of 16 and there is a significant age difference. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), reaffirmed in 27 I&N Dec. 1 (BIA 2020). These offenses are not CIMTs under that standard because the minor is under age 18, not age 16, and there is no requirement of any age difference. PC 286(b)(1), 287(b)(1), 289(h) should not be held CIMTs under BIA standard because they only require a minor under age 18. Conservatively assume 286(b)(2), 287(b)(2), 289(i) will be held CIMTs under BIA standard because minor must be under age 16 and perpetrator age 21 or older. Removal defense: note older Ninth Circuit decision holds the opposite. See endnote above and see PC 261.5(c), (d) | Advice: crime of child abuse. Even PC 286(b)(1), 287(b)(1), 289(h) (minor under age 18) will be charged as a deportable crime of child abuse, in light of Matter of Aguilar-Barajas. But this may be fought at the Ninth Circuit. See discussion at PC 261.5(c). To avoid this consider alternative pleas. If this offense cannot be avoided, consider a plea to PC 288.3 with intent to commit 287(b)(1), 286(b)(1), or 289(h). PC 288.3 includes an officer posing as a minor, and the BIA held that that is not a crime of child abuse. See discussion of Matter of Jimenez-Cedillo at PC 288.3. Assume that PC 286(b)(2), 287(b)(2), 298(i) will be held crimes of child abuse. | PC 286(b), 287(b), 289(h), (i) These offenses likely have the same immigration consequences as 261.5(b)/(c) (intercourse with a minor under age 18) or 261.5(d) (intercourse with a minor under age 16, if perpetrator was age 21 or older), depending on whether the offense requires cut-off of age 18 or 16. We compare these statutes to 261.5(c), (d) because there is extensive case law on the immigration consequences of PC 261.5 and the offenses share similar elements. Note that 286(b)(1), 287(b)(1) and 289(h) are even less serious than 261.5(c), because 261.5(c) requires the perpetrator to be at least three years older than the minor, while these statutes have no requirement of age difference. Under the categorical approach, these statutes should be evaluated as if the perpetrator had just turned 18 and the minor was a few days away from their 18th birthday. Under the categorical approach, all statutes discussed in this section are evaluated as if conduct is consensual. Alternative pleas. Rather than 286(b)(2), 287(b)(2), 289(i), consider 286(b)(1), 287(b)(1), 289(h), or 288.3 to commit those less serious offenses, or consider: 459 first or second degree, 243(a), (e), 236/237; or 136.1(b)(1) or PC 32, with sentence of less than a year; or 207(a) or 243.4, trying for a sentence of less than a year (but 243.4 is a CIMT). Or consider offenses like 288(c) or 647.6 which the Ninth Circuit has held not to be SAM or a CIMT, although other circuits might differ. Child abuse. Even 286(b)(1), 287(b)(1) and 289(h) might be charged as deportable child abuse, due to the confusing Matter of Aguilar-Barajas (BIA 2022). Consider PC 288.3. See further discussion at 261.5(c). | 800 |
| PC 286(g), (h), (i) | Sodomy without consent due to disability, intoxication etc. | AF as rape for 286(i) and likely (g), (h), regardless of sentence | CIMT | To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). |
Ninth Cir held that like other types of intercourse, sodomy without consent because V is intoxicated, PC 286(i), is rape.93Elmakhzoumi v Sessions, 883 F3d 1170 (9th Cir. 2018). See also Matter of Keeley, 27 I&N Dec. 146 (BIA 2017) (nonconsensual vaginal, anal, or oral penetration, including by digital or mechanical means, is rape). Likely to also apply to lack of consent due to disability, awareness, per (f), (g). | 810 |
| PC 288(a) | Lewd act with minor under 14 | Held AF as sexual abuse of a minor, regardless of sentence, although imm advocates at least can argue Ninth Cir should rehear en banc94Since publishing U.S. v. Baron-Medina, 187 F.3d 1144 (9th Cir. Cal. 1999), the Ninth Circuit repeatedly has held that Pen C § 288(a) is categorically SAM, despite the non-explicit, minor conduct that can form the basis for conviction. In an unpublished opinion, District Court Judge Orrick wrote that he would hold § 288(a) is not SAM, except that he must follow precedent to the contrary. If a client wishes to take the case to the Ninth Circuit en banc, advocates could consider his arguments. See U.S. v. Hernandez-Lincona, Filed Case No. 3:18-cr-00268-WHO-1 (D.C. No.Cal April 22, 2019). | Assume CIMT. | Deportable for crime of child abuse. To avoid, plead to age-neutral offense; see Advice. |
Bad plea. See age-neutral offenses like PC 32, 136.1(b), 236/237, 243, 243.4, 245, 314, 647. Or see 273a(b), 647.6. See § N.10 Sex Offenses. Might not be particularly serious crime for a form of relief called withholding of removal, if D can demonstrate honest belief V was older95Blandino-Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013) (§ 288(a) is not PSC where there is an honest belief that the victim was older). (but still a bar to asylum, as an aggravated felony). Assume bar to DACA; see note at PC 25400. Adam Walsh Act. This conviction can block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. | 820 |
| PC 288(c)(1) | Any conduct with lewd intent with minor age 14-15 years and 10 years younger than D | SAM. Ninth Circuit held not AF as SAM. But if D ends up in immigration proceedings outside the Ninth Circuit, there could be a different outcome. Not a COV. | Unclear. Ninth Circuit held it is not a CIMT. See Advice. | Ninth Circuit held not a deportable crime of child abuse. See Advice. Adam Walsh Act. This conviction can block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. |
For citations and further discussion, see endnote.96AF. Section 288(c) is not a COV. The Ninth Circuit held that felony § 288(c) is a COV only under the “ordinary” case test and 18 USC § 16(b). Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013). This no longer applies because the Supreme Court struck down § 16(b) as void for vagueness in Sessions v. Dimaya. See Dimaya discussion at Pen C § 207, above. The Ninth Circuit has held that 288(c) is not an AF as sexual abuse of a minor (SAM), and is not a CIMT, crime of child abuse, or crime of violence. See endnote above. Other options include PC 32, 136.1(b) (with 364 day or les), 236/237, 243, 243.4, 273a(b), 314, 459, 647, 647.6, etc. For the above offenses that are age-neutral, provide extra protection against a wrongful child abuse holding by sanitizing the ROC of the V’s age. Misd might be a significant misdemeanor for DACA, but 1203.4 may help; see note at PC 25400. | 830 |
| PC 289 (a)(1)(A) For analysis of PC 289(d), go to PC 261(a)(4) | Sexual penetration by force or duress | Assume AF as rape, regardless of sentence, but see Advice. | Yes CIMT | If it is a COV, it is a deportable crime of DV if V and D share a protected relationship. |
Rape. The BIA held that the generic definition of rape includes any penetration, including digital or mechanical, and that would include all of PC 289(a). Advocates in removal proceedings can investigate arguing to the Ninth Circuit that its generic definition of rape has included or should include only intercourse; that would make PC 289 overbroad. They should seek other defense strategies including post-conviction relief while pursuing this.97Advocates can make this argument, but have no guarantee of winning. The BIA held that rape encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Matter of Keely, 27 I&N Dec. 146 (BIA 2017). The Ninth Circuit repeatedly has defined rape as involving “intercourse,” beginning with the definition in Black’s Law Dictionary, but it is not clear whether intercourse excludes digital or mechanical, as opposed to penile, penetration. See, e.g., Elmakhzoumi v. Sessions, 883 F.3d 1170, 1172 (9th Cir. 2018) holding, that forcible sodomy under Pen C § 286(i) is rape because it is “intercourse,” while also citing the Board’s “comprehensive overview of the ordinary and contemporary definition of ‘rape’” in Matter of Keeley, supra at 147–152 – an overview that includes digital and mechanical penetration in the definition of rape. Consider 459/460(a) or (b), which can take a year or more, or 243.4, 236/237, which arguably can. Arguably, 289(d) is not “rape” for immigration purposes. See 261(a)(4). COV. This should not be a COV because it can be committed by psychological duress not based on threat of force or violence.[ii] But if it is AF as rape, this provides no advantage. | 840 |
| PC 289(e) | Sexual penetration if D knew or should have known that V was too intoxicated to consent | Assume it will be an AF as rape regardless of sentence, but see also discussion at 289(a)(1)(A), Advice. | Yes CIMT (imm advocates could investigate defense based on “should have known” standard but must pursue other defenses at the same time.) | See 289(a)(1)(A) |
Rape. See 289(a)(1)(A) regarding definition of rape and penetration. Ninth Cir held that “should have known” that V was impaired meets the mental state requirement for rape; see PC 261. COV. This might be held not a COV under Stokeling because actual force, even minor, is not required. See discussion at PC 207 and 289(a). But if it is an AF as rape, this provides no advantage. | 850 |
| PC 290 | Failure to register as a sex offender | Not AF | Although it should not be CIMT, assume it might be charged as one at least in some regions; see Advice | Conviction under state law for failing to register is a federal offense, 18 USC 2250, and the federal conviction is a basis for removal.98 See 8 USC § 1227(a)(2)(A)(v) and § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. See also Defending Immigrants in the Ninth Circuit, Chapter 6, § 6.22 (www.ilrc.org/crimes). |
CIMT: Despite the fact that 290 can be committed by negligence, and moral turpitude requires at least recklessness, the BIA held that PC 290 is a CIMT. The Ninth Cir declined to follow the BIA and remanded.99In Pannu v. Holder, 639 F.3d 1225 (9th Cir. 2011) the court remanded to the BIA to re-consider its holding in Matter of Tobar-Lobo, 24 I&N Dec. (BIA 2007), which is in tension with the requirement that an intent of at least recklessness is required for a CIMT. The BIA has not yet issued another opinion. Thus, in the Ninth Cir this should not be held a CIMT, but some risk remains that it would be so held outside the Ninth Cir, or conceivably that Ninth Circuit would change its rule in future. | 860 |
| PC 311.3(a) | Copy, exchange, etc. child pornography | Held not AF as child pornography See Advice. | Yes CIMT; see 311.11(a) | No other removal ground. |
AF: Citing ruling that PC 311.11(a) is not an AF as child pornography (see 311.11), Ninth Cir held that PC 311.3 also is not, under federal statute.100US v Reinhart, 893 F3d 606 (9th Cir 2018). But might be held AF outside of Ninth Circuit. | 870 |
| PC 311.11(a) | Possess child pornography | Ninth Cir held not an AF as child pornography. See Advice. | Assume that this is a CIMT, although removal defense advocates can argue against it.101Matter of Olquin-Rufino, 23 I&N Dec. 896 (BIA 2006). | No other removal ground. |
AF: See endnote for citations and discussion.102The definition of child pornography is subject to the categorical approach. Pornography that does not have a minor as an element is not an aggravated felony as child pornography even if the ROC shows involvement by a minor. See Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. 2014). Ninth Cir declined to follow the BIA and found that 311.11(a) is never an AF as child pornography under the categorical approach because it is broader than the federal definition and not divisible. But best practice is(a) to plead specifically to porn that depicts non-explicit conduct or to “any lewd or lascivious sexual act as defined in Section 288,” under 311.4(d), which should work in the Ninth Circuit, or b) far better, to avoid this conviction if at all possible because it might be held an AF as child pornography outside the Ninth Circuit. | 880 |
| PC 313.1 | Distribute, exhibit, obscene materials to a known minor, or without reasonable care to ascertain true age | Not AF | Should not be CIMT: no element of intent to arouse and can be based on negligent failure to ascertain age or properly shield document.103See, e.g., People v. Nakai, 183 Cal. App. 4th 499, 512 (Cal. App. 4th Dist. 2010). | Should not be charged as crime of child abuse. While there is no case on point, the minimum conduct is not necessarily harmful and includes failing to properly shield parts of magazines in a store or vending machine.104 See discussion in Berry v. City of Santa Barbara (1995) 40 Cal. App. 4th 1075, 1080-82. |
Adam Walsh Act. Conceivably the gov’t would assert that this conviction can block a USC or LPR’s ability to immigrate family members in the future under the Adam Walsh Act. While this seems incorrect given the minor harm and mens rea of negligence, there is little recourse if the government does so and they might rely on facts outside the record. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. | 890 |
| PC 314 (1) | Indecent exposure | Not AF as sexual abuse of a minor even if minor’s age is in ROC,105See discussion in Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. 2012) and see § N.10 Sex Offenses. but as always, the best practice is to keep minor age out if possible. | Yes CIMT. But see Advice for certain older convictions. | To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). |
AF: Good alternative to charges that are sexual abuse of a minor AF such as 288(a), or deportable crime of child abuse. CIMT: A defendant who pled guilty to 314 between Feb. 17, 2010 and Jan. 8, 2013 may be able to avoid the conviction being classed as a CIMT. See endnote.106In Ocegueda-Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010) the court held that because § 314(1) can be used to prosecute exotic dance performances that the audience wishes to see, it is not necessarily a CIMT. In Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), the BIA countered that § 314 no longer can be used to prosecute such performances and for this and other reasons, it is a CIMT. In Betansos v. Barr, 928 F.3d 1133 (9th Cir. 2019), the Ninth Circuit decided to defer Matter of Cortes Medina and withdraw from its holding in Ocegueda-Nunez, under Chevron and Brand X principles. It held that § 314 is a CIMT. Adam Walsh: If V under 18, this might trigger Adam Walsh provisions; see Advice to PC 288(a). | 900 |
| PC 315 | Keeping or residing in a place of prostitution or lewdness | Should be either divisible or not an AF but use caution and see Advice. | BIA held it is a CIMT, but advocates may have strong argument against this. See Advice. | See Advice for discussion of inadmissible for engaging in prostitution. See also PC 370 |
AF: Owning or controlling a prostitution business is an AF per 8 USC 1101(a) (43)(K)(i), while being a prostitute is not. Because 315 punishes sex workers (as opposed to managers) and can involve mere residency by a non-sex worker, it should be held either divisible as, or never, an AF. But this cd be wrongly charged as an AF and an unrepresented D would not know how to defend.107The definition of aggravated felony “relating to prostitution” is defined as owning or controlling a prostitution business. 8 USC § 1101(a)(43)(K)(i). Merely working as a prostitute does not come within the definition. Section § 315 “keeping or residing in house of ill-fame,” reaches the sex workers. See People v. Pangelina (1981) 117 Cal. App. 3d 414. It also reaches non-prostitutes who reside in the house. See Cartwright v. Board of Chiropractic Examiners, supra. This ought to distinguish this offense from a Wisconsin Statute, 944.34(1), that the BIA held is categorically an AF because it reached only persons who keep or grant use of a place of prostitution. Matter of Ding, 27 I&N Dec 295 (BIA 2018). Note that in Ding the BIA held that for purposes of § 1101(a)(43)(K)(i), prostitution is defined to include a lewd act in exchange for value and is not limited to sexual intercourse. CIMT: Old BIA decision held 315 is a CIMT, but it did not consider the fact that merely residing (which includes residency by a non-sex worker) should not be a CIMT.108In Matter of P–, 3 I&N Dec. 20 (BIA 1947), the BIA held that a conviction under Pen C § 315 for keeping a house of ill fame is a CIMT. However, it did not consider that § 315 covers simply renting living space in a house of ill fame, which arguably is not a CIMT. See Cartwright v. Board of Chiropractic Examiners, 16 Cal. 3d 762, 768 (Cal. 1976) (“Thus, conviction of violating section 315 does not necessarily require proof of personal or entrepreneurial participation in illicit sexual activities. Instead, the conviction can be based on circumstances of personal residence wholly unrelated to chiropractic practice and only peripherally related to prostitution. Such a conviction would not demonstrate professional unfitness on account of baseness, vileness or depravity.”) As a state case this does not control as to the issue of whether the offense is a CIMT for moral turpitude purposes but does control in its characterization of the elements of the offense. But an unrepresented D may not be able to raise this. While 315 should not be divisible, best practice is a specific plea to residing. See also PC 370. Inadmissible for engaging prostitution: A person is inadmissible who engaged in or received proceeds from prostitution within the last 10 years or plans to now. Prostitution is defined as sexual intercourse (not merely a lewd act) for a fee. No conviction is required. See PC 647(b). Conviction under an overbroad statute like this alone does not prove inadmissibility for prostitution,109The State Department defines prostitution for the inadmissibility ground as “engaging in promiscuous sexual intercourse for hire.” 22 C.F.R. § 40.24(b), discussing 8 USC § 1182(a)(2)(D)(i). Courts have adopted that definition for the inadmissibility ground (see Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006)). They also had applied it to the aggravated felonies that involve prostitution, e.g. 8 USC § 1101(a)(43)(K)(i). See, e.g., DePasquale v. Gonzales, 196 Fed.Appx. 580, 582 (9th Cir. 2006) (unpublished) (prostitution under Hawaiian law divisible because includes lewd acts); Prus v. Holder, 660 F.3d 144, 146-147 (2d Cir. 2011) (same for New York offense of promoting prostitution in the third degree); see also Familia Rosario v. Holder, 655 F.3d 739, 745-46 (government, IJ and BIA agreeing that under 8 USC § 1328 importation of persons for the purposes of prostitution is an aggravated felony while importation for other immoral purposes is not under 8 USC § 1101(a)(43)(K)(i)). California law broadly defines prostitution as engaging in sexual intercourse or any lewd acts with another person for money or other consideration. Lewd acts include touching of genitals, buttocks or female breast with the intent to sexually arouse or gratify. CALCRIM 1153. but gov’t can present other evidence of conduct. Victims of human trafficking. If the defendant may be a victim, see discussion at Advice to H&S C 11358. | 910 |
| PC 368 (b), (c) | Elder abuse: Injure, Endanger | Should not be AF as COV because it is an indivisible statute that can be committed by negligence. Still, try to plead to 364 days or less. See Advice. | Should never be a CIMT because it is an indivisible statute that can be committed by negligence. But best practice is specific plea to negligence. See Advice. | Not deportable DV offense, unless elder is protected by DV laws and offense is held a COV (which arguably would be incorrect). | PC 368(b), (c) AF, CIMT. Other than type of victim, PC 368(b), (c) uses the very same statutory language as PC 273a(a), (b) (child abuse). The Ninth Cir found that 273a(a) and (b) can be committed by negligence and are not divisible statutes, and thus that no conviction is a COV.110In considering Pen C § 368, see Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016) on the nearly identically worded statute on child endangerment, Pen C § 273a. “Although section 273a(a) requires a mens rea of ‘willful[ness]’ for the three prongs of the statute that criminalize indirect infliction of harm or passive conduct, the California Supreme Court has interpreted ‘willful[ness]’ in this context to require proof only of criminal negligence.” See also CALCRIM 830, requiring negligence for Pen C § 368. No 273a conviction should be a CIMT, for the same reason. The same findings should apply to 368(b), (c). But to provide more protection, plead specifically to negligent, less egregious conduct, and try to obtain 364 or less. | 920 |
| PC 368(d) | Elder abuse: Theft, Fraud, Forgery, 530.5 by D who knows or should know V is an elder | 368(d)(1) risks being an AF if 1 yr or more is imposed and/or loss > $10k. See Advice. (d)(2) does not have this risk because the top is 364 days and loss of $950 or less | Assume CIMT, except: See PC 530.5(a), which generally is not a CIMT because it does not require any loss. If 368(d) can be committed without causing any loss to V, arguably 368(b)/530.5(a) is not a CIMT. | No other removal ground. | PC 368(d) AF: See Advice to PC 484. In sum, fraud/deceit is an AF if loss to the V exceeds $10k. Theft is an AF if a year or more is imposed. Try to take a specific plea to the option that avoids an AF, although arguably the statute is not divisible. Plead to deceit (embezzlement, fraud, identity theft) only where loss to victim does not exceed $10,000. This can take a sentence of over a year. If loss > $10k, plead to straight theft (taking by stealth). Avoid 1 yr or more on any one count. Theft can take either 1 yr or loss > $10k, but not both on a single count. Forgery plea should not take either 1 yr or $10k loss. Plead to a specific offense other than forgery. | 930 |
| PC 381, 381b | Possess, use toluene (381), nitrous oxide (381b) | Not AF | Not CIMT | Appear to not be CS offenses because they do not appear on federal schedules |
Possible drug charge alternative; six-month misdemeanor. Being under the influence under PC 381 is eligible for PC 1000 pre-trial diversion (and was for former DEJ) treatment. See discussion of those at H&S C 11377. | 950 |
| PC 403 | Disturb public assembly | Not AF. | Not CIMT; see Advice | No other removal ground. |
This does not have CIMT elements, but for extra protection keep ROC free of very bad conduct or violence. | 960 |
| PC 415 | Disturbing the peace | Not AF. | Not CIMT | No other removal ground. | 970 | |
| PC 416 | Failure to disperse | Not AF | Not CIMT | No other removal ground. | 980 | |
| PC 417(a) (1) Non-firearm (2) Firearm | Exhibit firearm (2) or deadly weapon not a firearm (1), in a rude, angry or threatening manner; or unlawfully use in fight (b) exhibit loaded firearm at a childcare center; (c) in presence of peace officer | a) is Not AF: maximum 364 days (b) and (c) could be COVs – plead to less than 1 yr111See Matter of Pougatchev (BIA 2023) 28 I&N Dec. 719 (holding that NY second-degree burglary while displaying a gun, NYPL 140.25(1)(d), necessarily involved the threatened use of force). | Should not be a CIMT but some advocates fear it will be so charged, especially 417(b).112PC 417 as CIMT. Arguably it is not a CIMT. See Matter of G.R., 2 I&N Dec. 733, 738-39 (1946), citing People v. Sylva, 143 Cal. 62 (1904), comparing assault with a deadly weapon, which the BIA in this case stated requires specific intent to injure and is a CIMT, to brandishing a weapon, which is a “general intent” crime, and the BIA implied, not therefore a crime of moral turpitude. Section 417(a)(2) does not distinguish between “loaded” or “unloaded” firearm, and the BIA stated that “[p]ointing an unloaded gun at another, accompanied by a threat to discharge it without any attempt to use it, except by shooting, does not constitute an assault. There is in such case no present ability to commit a violent injury on the person.” Exhibition or use of a loaded firearm at a daycare under PC 417(b), could be held a CIMT because of the vulnerable population at issue. | 417(a)(2) is not a deportable firearms offense, but see Advice. See Advice if V has domestic relationship or is a minor. | PC 417(a) AF, crime of DV: While no conviction for subsection (a) should be held a COV, and therefore not a crime of DV, the best practice is a plea to rude rather than threatening conduct, especially if V is protected under DV laws. Firearms: 417(a)(2) is not a firearms offense under the antique firearms rule.113Section 417 is not a deportable firearms offense because it uses the definition of firearms at Pen C § 16520(a). See CALCRIM 980-983 and see Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014), U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). See PC 29800(a). But try to plead to 417(a)(1) in case D is unrepresented and cannot raise this defense. Child abuse. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). Misd firearms offense is a “significant misdemeanor” for DACA; see Advice at PC 25400. | 990 |
| PC 417.3, 417.8 | Exhibit firearm in a threatening manner so V reasonably could fear, or to evade arrest. | Get 364 days or less to avoid AF as COV for 417.3, but see advice for 417.8.114Bolanos v. Holder, 734 F.3d 875 (9th Cir. 2013) (Pen C § 417.3 is a COV under 18 USC § 16(a)), distinguishing Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir.2011). The Ninth Circuit also held that § 417.8 is a COV in Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 941 (9th Cir. 2004). However, the court did not consider the argument that § 417.8 applies to a person who threatens to harm themselves, while the immigration definition of a COV, 18 USC 16(a), only covers force “against the person or property of another.” See discussion, e.g., in Herdocia v Garland, No. 19-70266, 2021 WL 1345424 (9th Cir. Apr. 12, 2021). To avoid 1-yr sentence, see § N.4 Sentence. | Assume CIMT | See PC 417(a)(2) |
AF as COV. Arguably PC 417.8 is not a COV under 18 USC 16(a) because it includes violence to self, not only to “other,” which is part of § 16(a). Misd firearms offense is a “significant misd” for DACA; see Advice at PC 25400. See PC 417, 240, for better plea. | 1000 |
| PC 417.4 | Exhibit imitation firearm in threatening manner; V reasonably could fear | COV, but not AF because maximum less than one year | Assume a CIMT | Not deportable firearms offense; see Advice. DV offense if showing that V is DV-type V. |
Imitation firearm is defined at PC 16700; this does not appear to be included in the 18 USC 921 federal definition. Federal offense prohibiting imitation guns without orange cap (15 USC 5001) is not listed in firearms AF definition at 8 USC 1101(a)(43)(E). | 1010 |
| PC 417.26 | Unlawful laser activity | Not a COV | Not categorically a CIMT; see Advice | No other removal ground. |
CIMT: Ninth Cir held that violating 417.26 by using a laser pointer, at least, is not a CIMT.115Coquico v. Lynch, 789 F.3d 1049, 1050 (9th Cir. 2015) (misdemeanor unlawful laser activity under Pen C § 417.26 is not a categorical crime involving moral turpitude because it can be violated by conduct that resembles non-turpitudinous simple assault and has little similarity to a terrorizing threat. To be sure to avoid a CIMT, plead to use of a laser pointer. For prior convictions where this was not done, immigration counsel may argue the statute is indivisible between laser pointers and other items. | 1020 |
| PC 422 | Criminal threats (formerly terrorist threats) | Get 364 days or less on any single count to avoid AF as COV.116Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. 2003). See § N.4 Sentence. See Advice. | Yes CIMT117Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012). | Deportable DV crime if proof V and D have a type of relationship protected under state DV law. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). |
To avoid COV and a deportable crime of DV, see PC 32, 69, 136.1(b), 148(a), 236/237, 243(a), (e), 243.4(a), (e), 459/460(a) or (b). Do not plead to 243(d). Some of these can take a sentence of a year. See also Case Update: Domestic Violence Deportation Ground (2018) at www.ilrc.org/crimes If D will go to prison, avoid an AF by making PC 422 the subordinate felony, for a sentence of 8 months. | 1030 |
| PC 451, 452 | Arson by malice, PC 451 Unlawful burning by recklessness, PC 452 | Ninth Circuit held PC 451 is not an AF as arson, but see Advice PC 452 should not be arson but see Advice Neither should be a COV under 18 USC 16(a) | PC 451, 452 will charged as CIMTs, but there are arguments against this. See Advice | No other removal ground. |
See endnote for citations and further discussion.118PC 451 as arson. An offense “described in” 18 USC 844(i) is an AF as arson. 8 USC 1101(a)(43)(E)(i). In other words, 8 USC 844(i) is a generic definition of arson for purposes of the categorical approach. In Togonon v. Garland, 23 F.4th 876 (9th Cir. 2022), the Ninth Circuit held that PC 451(b) is not arson because it has a broader mens rea than 844(i). Because 451(a)-(e) all share the same mens rea, no conviction under 451 can be an AF under Togonon. PC 451 as arson. 18 USC 844(i) supplies a generic definition of arson, per 8 USC 1101(a)(43)(E)(i). The Ninth Circuit held that PC 451(b) is not arson because the mens rea does not match 844(i), in Togonon v. Garland (2022). Because PC 451(a)-(e) all have the same mens rea, no conviction under 451 should be an AF under Togonon. 18 USC 844(i) prohibits “maliciously” damaging property etc. by fire or explosive. In Togonon the Ninth found that “maliciously” here means damaging the property either intentionally, or with conscious disregard of a known risk, i.e., recklessly. The court found that in PC 451 requires a willful act, but does not require a conscious disregard of a known risk of damage (despite the term ‘malicious’ in the statute). Instead the court found that PC 451 requires awareness of circumstances where a reasonable person would have known that the natural and probable consequence would cause damage to property. Therefore 451(b) is not an AF as arson. PC 452 as arson. Federal arson requires maliciously causing damage, meaning either an intentional causation of damage, or a subjective awareness and conscious disregard of the known risk of causing damage. See definition of arson above. PC 452, however, requires recklessly causing a fire, but does not require a subjective awareness of the risk of damage from the fire. Thus, PC 452 is overbroad and should never be arson. However, ICE could contest this, and PC 452 could use additional analysis to strengthen the defense. See endnote. PC 451, 452 as a COV. A COV, defined at 18 USC 16(a) to include using force against person or property of another, is an AF if a year or more is imposed. 8 USC § 1101(a)(43)(F). PC 451, 452 were considered COVs under 18 USC 16(b), but 18 USC 16(b) has been held unconstitutional. Now only 18 USC 16(a) defines a COV. There is no precedent on 451, 452 as a COV under 16(a). Because they involve a mens rea less than recklessness when it comes to the risk of causing damage, and recklessness itself is not a COV, arguably neither offense has the required use of intentional, aggressive force against person or property. See above endnote and see discussion of COV at PC 207. Both 451 and 452 can include burning the person’s own property. That is not a COV under 18 USC 16, which only covers the “property of another.” Alternatives: To more surely avoid an AF as arson, see felonies such as PC 459 1st or 2nd degree, or 594, which may take 1 year or more without being an AF. If needed couple with H&S C 13001 (negligence), PC 136.1(b)(1) consecutive (8 months sentence), 370. Also consider Pub. Res. Code §§ 4421, 4422, 4427, 4435. PC 451, 452 as CIMT. An offense is a CIMT if it has as an element either evil intent, or recklessness defined as conscious disregard of an imminent risk of causing death or serious injury. Matter of Leal (BIA 2012). Because courts generally have held that arson is a CIMT, defenders should conservatively assume 451 and 452 will be CIMTs, but removal defense advocates have arguments. While PC 451 requires the person to “maliciously” cause a fire, here maliciously means merely to knowingly and unlawfully ignite a fire, without evil intent (even intent to vex or annoy) or desire to cause harm or gain benefit, but under circumstances where a reasonable person would have known of the risk that it could cause harm, i.e., a standard like criminal negligence. For example, teenagers who started a fire when they set off a cherry bomb near a dry hillside were guilty of PC 451, when they did not know that this risked a damaging fire, but a reasonable person would have known. PC 452 prohibits setting the fire “recklessly,” which here means accidentally, but with a conscious disregard of a substantial risk in a gross deviation from a reasonable person standard. P.C. § 450(f). This is not a CIMT under Leal because it does not involve conscious disregard of a subjectively known risk of harm (as opposed to igniting a fire), or if it does, because the harm risked is not imminent death or serious injury. But this may be contested. See above endnote. | 1040 |
| PC 453 | Possess flammable material with intent to burn | Should not be an AF, but try to get less than 365. See Advice. | Assume a CIMT | No other removal ground. |
AF: It appears that possession or disposal of flammable materials is not analogous to an offense at 8 USC 1101(a)(43)(E)(i) and thus is not an AF as arson. It should not be an AF as a COV because, among other reasons, possession with intention is not equivalent to attempt,119PC 453, possession of flammable material with intent to burn structure or property, is not attempted arson. See People v. Morse, 116 Cal. App. 4th 1160, 1165–66 (2004). Likewise it could not be an attempted crime of violence. See also PC 455, attempted arson. use, or threat of force, which is required in 18 USC 16(a). But to surely avoid an AF as a COV, get 364 days or less on each count. See § N.4 Sentence. See also PC 451, as well as alternatives such as, e.g., PC 32, 459, 594, which could be coupled with H&S C 13001.
| 1050 |
| PC 459, 460(a) | Burglary, first degree (residential) | Not a COV or AF under any category.120Burglary as an AF. A burglary conviction potentially can be an aggravated felony under any of three categories, but under the categorical approach California burglary (Pen C § 459) does not come within any of these categories and never is an AF, regardless of whether it is first degree (Pen C § 460(a), residential) or second degree (§ 460(b), commercial) burglary. (See ILRC, How to Use the Categorical Approach Now (2021) more information.) Two key factors distinguish California burglary from some other burglary statutes and decisions holding that those offenses are aggravated felonies: California burglary includes a lawful entry and is not divisible between lawful and unlawful entry, and California burglary is not divisible as to the intended offense. 460(a) and (b) can take a sentence of 1 yr or more if needed. While 364 is always preferable, this is one of the more secure offenses to take 1 yr on. See § N.4 Sentence. | Should not be a CIMT regardless of intended offense, under BIA and Ninth Circuit standards,121California burglary (Pen C § 459) is never a CIMT, regardless of whether it is first degree (Pen C § 460(a), residential) or second degree (Pen C § 460(b), commercial) burglary. Two key factors distinguish California burglary from some other burglary statutes and decisions holding that those burglary statutes are CIMTs: California burglary includes a lawful entry and is not divisible between a lawful and unlawful entry, and California burglary is not divisible as to the intended offense. (See ILRC, How to Use the Categorical Approach Now (2021) more information.) | No other removal ground. |
CIMT. PC 459 cannot properly be found a CIMT. Here are two ways to further protect D from a wrongful CIMT finding. In the Ninth Cir 459 is not a CIMT for any purpose regardless of info in the ROC, because it is a lawful entry and it is not divisible as to the intended offense. See CIMT endnote. But because immigration authorities might make a mistake and review the ROC, and D may be unrepresented, best practice if possible is to identify an intended offense that was not a CIMT, e.g., felony 236/237, 496, 594122Felony vandalism can be the intended burglary offense. People v. Farley (2009, Cal) 46 Cal 4th 1053. or other felony non-CIMT, and/or state that it was a lawful entry. 460(a) does not meet the BIA’s specific definition for when res burglary is a CIMT, because that requires an unlawful entry. However, in case the BIA someday changes its definition, if avoiding a CIMT is absolutely critical one could seek a plea other than 460(a). See CIMT endnote. | 1060 |
| PC 459, 460(b) | Burglary, Second degree, (Commercial) | Never an AF under any category; see 460(a). But as always, best practice is to obtain 364 days or less on any single count if that is possible. | Never a CIMT regardless of intended offense; see 460(a). See Advice. | No other removal ground. |
Very good immigration plea, regardless of record of conviction (ROC). Still, for extra protection against wrongly filed immigration charges, one can create a good ROC by identifying lawful entry or, especially, intent to commit a non-CIMT. DACA. Misd burglary is a “significant misdemeanor.” See PC 25400. Prop 47: If offense was entering open business with intent to steal $950 or less, see 459.5. However, for CIMT purposes this may not be as secure as 459. Also immigration authorities may assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.123See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014). | 1070 |
| PC 459.5 | Shoplifting | Not AF (6-month max) | Not CIMT per Ninth Circuit but plead to property “intended to be taken” if possible and also see Advice. PC 459 is more secure for CIMT purposes. | No other removal ground. |
CIMT: Ninth Circuit held that a lawful entry with intent to commit theft is not a CIMT, so 459.5 should not be. While it should not be held divisible, do plead to property “intended to be taken” not property “taken.”124See discussion of Hernandez-Cruz v. Holder, 651 F.3d 1094, 1104 (9th Cir. 2011) at § 460(a) CIMT endnote, above. Hernandez-Cruz specifically held that Pen C § 460(b) is not a CIMT even if the intended offense is larceny, because burglary includes a mere lawful entry into a commercial building with bad intent. Section 459.5 has the same elements, at least with intent to take property as opposed to having taken property. Further, § 459.5 should not be held divisible between intent to take and taking, as there is no evidence that a jury must decide unanimously between those two options in order to find guilt. See more on the categorical approach at ILRC, How to Use the Categorical Approach Now (2021). But this may not be secure. CIMT law is volatile and 460(b) has a stronger CIMT case. If avoiding a CIMT is critical, consider other options for a new charge (460(b), 496, 530.5), and consider whether to stay with a 460(b) prior rather than obtain Prop 47 relief. See PC 460(a) endnote on CIMT, above. | 1080 |
| PC 466 | Possess burglary tools, intend to enter building, etc. | Not AF (lacks the elements, and 6-month max misd). | Should not be CIMT. See Advice | No other removal ground. |
CIMT: Intent to unlawfully enter any building, vehicle, etc., with no element regarding intent to commit a further crime is not a CIMT.125See, e.g., Matter of M, 2 I&N Dec. 721, 723 (BIA 1946) (mere unlawful entry is not a CIMT; it must be unlawful entry with intent to commit a CIMT), and discussion of that case in Matter of Louissaint, 24 I&N Dec. 754, 755-56 (BIA 2009) (adding to that rule by holding that an offense with elements of unlawful entry into an occupied dwelling with intent to commit a crime also is a CIMT). Section 466 does not require intent to commit any crime, much less a CIMT, or to enter a particular place, much less an occupied dwelling. | 1090 |
| PC 470, 470a | Forgery | Get 364 or less on each count to avoid AF as forgery, or counterfeiting.126Conviction for forgery or for counterfeiting is an aggravated felony if a sentence of a year or more is imposed on any single count. See 8 USC § 1101(a)(43)(R), INA § 101(a)(43)(R) and see § N.6 Aggravated Felonies. Immigration counsel can investigate whether § 470 might be overbroad compared to the generic definition. However, in a split opinion the Ninth Circuit held that § 470a is an aggravated felony as “forgery” if a year or more is imposed, including if the offense involves photocopying a drivers’ license with intent to commit forgery. See Escobar Santos v. Garland, 4 F.4th 762 (9th Cir. 2021). See § N.4 Sentence. | Yes CIMT. To avoid a CIMT, see 529(a)(3), 530.5, 496. | No other removal ground. |
To surely avoid AF for 470 or 470a, D must avoid 1 yr imposed on any single count or loss to victim/s exceeding $10,000.Either one will create an AF. If either one of these is present, try to plead to a different offense such as PC 487. See PC 484, below. Otherwise, consider these strategies. AF with $10k loss. A crime involving fraud or deceit is an AF if loss to victim/s exceeds $10k. To avoid this, plead to 487 grand theft, defined by PC 484. If that is not possible, plead to one count 470 and state in the plea agreement that the loss to the victim/s was, e.g., $9k. If restitution of more than $10k must be ordered at sentencing, include a Harvey waiver and a statement (for immigration judge’s benefit) that the restitution is based on uncharged conduct or dropped counts. While there is no case on point, this follows Supreme Court statements.127Conviction of an offense that involves fraud or deceit is an aggravated felony if the loss to the victim/s exceeds $10,000. 8 USC 1101(a)(43)(M). The Supreme Court held that the amount of loss is a “circumstance specific” factor that does not come within the categorical approach, and that evidence from outside the reviewable record of conviction may be used to prove the amount. However, the loss amount must be tethered to the offense of conviction and cannot be based on acquitted or dismissed counts or general conduct. Nijhawan v. Holder, 557 U.S. 29, 42 (2009). If possible, defenders should supply both a Harvey waiver and spell it out by stating that additional restitution is based on dropped charges or uncharged conduct, because immigration officials may not be familiar with Harvey waivers. See further discussion of these issues in state and national Nijhawan practice advisories, by searching for Nijhawan at www.ilrc.org/crimes and www.nipnlg.org. AF with 1 year. To craft a disposition where a sentence of less than 1 yr is imposed for immigration purposes, but the person actually serves more than 1 year, see § N.4 Sentence. But if 1 yr imposed cannot be avoided, go to 484, 487, 475(c), 529(a)(3), 530.5, or other offenses involving fraud or deceit that do not involve a false instrument and that can take a year. For past convictions, imm counsel can investigate arguments that PC 470 is broader than generic forgery or counterfeiting. That will not work if there also is $10k loss. Prop 47: Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.128See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014). | 1100 |
| PC 471.5 | Falsification of medical records | May be AF as crime of deceit if loss to V exceeds $10k. | CIMT because it involves fraud | No other removal ground. |
If the loss may exceed $10k, see discussion at PC 470. | 1110 |
| PC 475(c) | Possess “real or fictitious” check, etc. with intent to defraud | Can avoid AF as forgery; see Advice. Yes, AF as fraud if loss exceeds $10k; see Advice for PC 484. | CIMT because fraud | No other removal ground. | PC 475(c) AF as Forgery. The best defense is to get 364 days or less on each count. But if 1 year was or must be imposed, note that Ninth Cir held 475(c) is broader than forgery because 475(c) includes use of “real” document.129Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 8767 (9th Cir 2008). In case 475(c) ever is held divisible between real or fictitious documents, plead to use of “real” doc with intent to defraud. That is not an AF in the Ninth Cir even with 1 yr imposed. AF if $10k loss. If loss exceeds $10k see instructions at PC 484 and 470. | 1120 |
| PC 476(a) | Forged check or monetary instrument | AF if loss to the victim/s exceeds $10,000; see Advice. AF as forgery if 1 yr or more; get 364 or less on each count.130Morales-Alegría v. Gonzales, 449 F.3d 1051, 1056 (9th Cir. 2006). | CIMT. See 529(a)(3), 530.5, to try to avoid CIMT. | No other removal ground. | PC 476(a) To avoid an AF based on conviction of a fraud or deceit offense where loss to the victim > $10k, see PC 484. If that is not possible, follow Advice for PC 470. Prop 47: Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.131See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014). | 1130 |
| PC 484, 487, 490, 666 | Theft (petty or grand) Section 484 provides the definition for PC 487, 490, and 666. This section will refer to a “PC 484” to mean any of these offenses. | PC 484 is extremely useful because it can take a year or more without becoming an AF as theft. It also can take a loss to the victim/s exceeding $10k without becoming an AF as fraud or deceit. But PC 484 cannot take both 1 yr and loss > $10k on a single count. Where both factors are present, get expert help to craft a plea, probably to multiple offenses, and see Advice. | A current plea to 484 is a CIMT. To avoid a CIMT, consider PC 459, 529(a)(3), 530.5 (which all can take 1 year without becoming an AF), or PC 496, VC 10851 (which cannot). For past convictions, there is a strong argument that a 484 conviction from before November 16, 2016 is not a CIMT, although unfortunately it will require an en banc decision to confirm this. See discussion of Silva v. Barr.132While PC 484/487 has long been held a CIMT, this might change for some past convictions. The panel in Silva v. Barr, 965 F.3d 724, 731 (9th Cir. 2020), withdrawn and superseded by Silva v. Garland, 993 F.3d 705 (9th Cir. 2021), stated that it would have held that convictions of PC 487 from before Nov. 16, 2016 are not CIMTs, except that it is bound by prior, incorrect Ninth Circuit precedent to the contrary. The court stated, “But we are nevertheless bound by our precedent… Only an en banc court has the power to fix these errors.” Id. at 717. However, Mr. Silva’s petition for rehearing en banc was denied, so the legal issue is left in limbo. | No. |
A 484 conviction is not an AF if either a 1 yr sentence was imposed, or the loss to the victim/s exceeded $10k (but not both; see below). This plea is safe regardless of whether D specified theft, fraud, or neither one in the ROC. But to further protect D, who may be unrepresented in proceedings where immigration authorities are not familiar with the law on PC 484, the best practice is to try to create an ROC that shows the following:
But again, if all of the above failed, as a matter of law, under the categorical approach, D still does not have an aggravated felony because the statute is not divisible between theft and fraud. The goal of the above instructions is just to make things very clear to immigration authorities. Why does this work? Authorities recognize that fraud (taking by deceit, with consent) is an AF if loss to the victim/s exceeds $10k, but not if 1 yr is imposed. 8 USC 1101(a) (43)(M). Thus, embezzlement or other 484 deceit offense with a year imposed is not an AF, as long as there is no $10k loss. Theft (taking by stealth, without consent) is an AF if 1 yr or more is imposed on a single count, but not if loss to victim/s exceeds $10k. 8 USC 1101(a)(43)(G). Thus, stealing or other 484 theft can take a loss exceeding $10k, as long as sentence is less than 1 yr. However, a single count cannot take both loss exceeding $10k and sentence of 1 yr or more. See federal court and BIA cases.133The Ninth Circuit held that no conviction of Pen C § 484/487 theft is an AF as “theft” even if a 1-year sentence is imposed, because the § 484 definition also includes fraud, which does not become an AF if 1 year is imposed, and § 484 is not divisible between theft and fraud. See Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), and see ILRC, How to Use the Categorical Approach Now (2021) for more information on divisibility. Also, section 484/487 is not an AF as fraud even if loss to the victim/s exceeds $10,000. Note on loss exceeding $10k: Officials are not limited by the categorical approach, and to some extent can use evidence from outside the ROC, to prove the $ amount of loss. If one must plead to an offense involving fraud or deceit where the loss actually exceeded $10k, and/or where restitution of more than $10k is ordered, see discussion at PC 470 for how to control the record. But the most secure way to avoid the $10k problem is the one described above: plead to PC 484-type theft offense, rather than fraud or deceit, so that the amount of loss is irrelevant. | 1131 |
| PC 485 | Theft by misappropriation | Get 364 or less on each count, to avoid AF as theft. If that is not possible, see Advice | Arguably not a CIMT because includes intent to temporarily deprive; see discussion in unpublished Ninth Circuit case.134In Sheikh v. Holder, 379 Fed.Appx. 697, 2010 WL 2003567 (9th Cir. May 20, 2010) (unpublished), the panel found that Pen C § 485 is not a CIMT because it does not have intent to permanently deprive as an element. But see Advice. | No other removal ground. |
AF as theft: Imm advocates can explore argument that this is not “theft” because it does not involve stealth, and thus should not be an AF even with 1 yr sentence. But defenders should not rely on this untested argument and should seek, e.g., 459, 487, 530.5 if more than 364 days will be imposed on a single count. Note that 487 is a CIMT, while 530.5 will be an AF if the loss to victim/s exceeds $10,000. CIMT: If avoiding CIMT is critical, see PC 529(a)(3), 530.5, 496, 10851. | 1140 |
| PC 490, 490.1 | Petty theft (misd or infraction) See PC 484, above | Not AF. | Assume CIMT for a new conviction, but arguably not a CIMT if conviction occurred before Nov. 16, 2016 – see PC 484 notes. See Advice re infractions | No other removal ground. |
CIMT. While a Calif infraction arguably is not a “conviction” for imm purposes, there is no ruling and defenders must conservatively assume that it will be treated as one. See 11358. If 490.1 is treated as a conviction, this is a CIMT. To avoid a CIMT, see PC 459, 496, VC 10851. Also see discussion at PC 484. | 1160 |
| PC 496, 496a, 496d | Receiving stolen property, or receiving stolen vehicle | Get 364 or less on each count to avoid AF.135The BIA held that Pen C § 496 with a year or more imposed is an aggravated felony under 8 USC § 1101(a)(43)(G), which provides that “a theft offense (including receipt of stolen property)” is an aggravated felony if a year is imposed. The BIA said that even though § 496 does not require common law theft or larceny, it meets the definition of “receipt of stolen property.” Matter of Alday-Dominguez, 27 I&N Dec. 48 (BIA 2017). The Ninth Circuit deferred to this decision in United States v. Flores, 901 F.3d 1150 (9th Cir. 2018). See Advice. | Never should be held CIMT, but best practice is a specific plea to receiving stolen property with intent to deprive temporarily. See Advice. | No other removal ground. |
Avoid 1 yr. For a discussion of how to obtain a sentence of 364 days or less for immigration purposes, while spending more time in jail, see § N.4 Sentence. If 1 yr will be imposed: See offenses like 459, 529(a)(3), 530.5 (which also are not CIMTs) and 487 (which is a CIMT). If the loss to the victim/s exceeds $10,000, do not take 529(a)(3) or 530.5 and work carefully with 487. CIMT: Ninth Cir held that 496 includes intent to temporarily deprive the owner, which is not a CIMT. Under subsequent Supreme Court precedent, 496 should not be held divisible; thus no conviction is a CIMT.136The Ninth Circuit held that the minimum conduct to commit §§ 496 or 496a involves intent to temporarily deprive the owner, which is not a CIMT. Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009) (Pen C § 496(a)); Alvarez-Reynaga v. Holder, 596 F.3d 534 (9th Cir. 2010) (Pen C § 496d(a)). Prop 47: Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.137See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014). | 1170 |
| PC 498(b), (d) | Obtaining utility services without intent to pay | Might be charged as an AF, so get 364 or less on each count and avoid if loss exceeds $10k but see Advice for defenses. | Assume a CIMT as an unlawful taking with intent to deprive permanently | No other removal ground | PC 498(b), (d) AF as theft if 1 year imposed: Arguably theft of utility services does not meet the generic definition of theft in the Ninth Circuit, which is a taking of property, not of services.138The Ninth Circuit has long held that theft of labor or services does not meet the generic definition of “theft.” Theft requires a taking of property. See, e.g., Lopez-Valencia v. Lynch, 798 F.3d 863, 869 (9th Cir. 2015) (noting that “a defendant may be convicted of ‘theft’ if six jurors believe that he committed larceny (which is a form of theft that meets the federal generic definition) and six jurors believe that he committed theft of labor (which is not).”). But try to avoid the issue by getting 364 or less on each count, or else see PC 487. AF as deceit with loss exceeding $10k. Arguably this is not deceit (a taking with consent) but is theft (a taking without consent, by stealth). But best practice if loss exceeds $10k is to avoid the risk and consider PC 487. | 1180 |
| PC 499, 499b | Joyriding; Joyriding with Priors | Get 364 or less on each count to avoid AF as theft. See § N.4 Sentence. | Not CIMT because intent to temporarily deprive | No other removal ground. |
If 1 yr will be imposed on a single count, consider PC 484 designating a fraud offense. See also VC 10851, but this is not as safe as PC 484. | 1190 |
| PC 528.5 | Impersonate by electronic means, to harm, intimidate, defraud | AF as fraud if loss exceeds $10k. Consider plea to 484/487, and see Advice to 470, above. Not a COV, plus it has a maximum 364-day sentence. | Intent to defraud is a CIMT, but intent to harm should not be. See Advice. | Not a COV because the harm need not be force. Therefore, it cannot be a deportable crime of DV. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). |
Possible substitute charge for ID theft or similar offense, but a better choice is 529(a)(3), 530.5. CIMT: Best practice is plea to “harm” (if possible, a specific mild harm). Offense can be committed by, e.g., impersonating a blogger, or sending an email purporting to be from another, to their embarrassment.139See discussion In re Rolando S., 197 Cal. App. 4th 936 (Cal. App. 5th Dist. 2011). But even if a prior plea was to fraud, imm advocates should assert that 528.5 is not a CIMT for any imm purpose because it is not divisible between fraud and harm, as there appears to be no authority that a jury is required to decide unanimously between those alternatives to find guilt. See ILRC, How to Use the Categorical Approach Now (2021) | 1210 |
| PC 529.5(c) | Possess document purporting to be gov’t-issued ID or DL. | Not AF | Should not be a CIMT; no intent to defraud | No other removal ground. | PC 529.5(c) Good alternative to more serious identity theft charge. | 1230 |
| PC 530.5(a), (d)(2) | Obtain any personal identifying info and use for “any unlawful purpose, including “to obtain credit, goods, services, or medical information” (part (a)) or Transfer any such information, knowing transferee will use for unlawful purpose (part (d)(2)) | Not AF based on 1 year imposed, but 364 is always best. See Advice. Assume AF if loss to victim/s exceeds $10,000. To avoid that, consider plea to 484/487 and see Advice to 470, above. | Not a CIMT. Ninth Circuit held it is not, but in at least one case, USCIS wrongly asserted it is divisible. See Advice re best practice for ROC. | No other removal ground. | PC 530.5(a), (d)(2) AF with 1 yr. Conviction of theft, forgery, or counterfeiting is an AF if 1 yr or more is imposed. These are not elements of 530.5 and it can’t properly be held an AF under any of these categories regardless of underlying conduct.140If a sentence of a year or more is imposed, “theft” is an AF under 8 USC § 1101(a)(43)(G), and “forgery” and “counterfeiting” are AFs under § 1101(a)(43)(R). Under the categorical approach, § 530.5(a) lacks elements required for the generic definition of these offenses and thus cannot be an AF under any of these categories. (See ILRC, How to Use the Categorical Approach Now (2021) for more information.) “Theft” requires a taking by stealth, without consent. See discussion at Pen C § 484. “Forgery” and “counterfeiting” require, at a minimum, use of a written instrument. But to avoid a possible wrongful AF charge, keep sentence under 1 yr for each count and/or keep conduct involving forgery, counterfeiting, or obtaining goods out of the ROC. If D must take 1 yr or more, however, 530.5 is a reasonable choice. CIMT. The Ninth Circuit held that the minimum conduct to commit 530.5(a) or (d)(2) is not a CIMT because it involves using the info for “any unlawful purpose” with no requirement of harm, loss, or intent to defraud, for example, working under another person’s name. Under the categorical approach, the sections cannot be held divisible as to the type of unlawful conduct.141Section 530.5(a) is overbroad and indivisible as a CIMT, so that no conviction is a CIMT for any immigration purpose, regardless of information in the record of conviction. | 1240 |
| PC 530.5(c), (d)(1) | With intent to defraud, uses another’s unlawfully obtained personal identifying information | AF if loss to victim/s exceed $10,000. Not AF by 1 yr imposed. See Advice. | Yes, CIMT because intent to defraud. | No other removal ground. | PC 530.5(c), (d)(1) The discussion above of 530.5(a) as a potential AF based on a sentence of 1 yr or more applies to 530.5(c), (d). If the loss to the victim/s exceeds $10k, plead to PC 487, 459. If that is not possible, see discussion at PC 470 for how to create an ROC here to avoid an aggravated felony. | 1250 |
| PC 532(a) | Fraudulently obtain money, credit, etc. | Yes, AF if more than $10k. See PC 487, 470. Try to get 364 or less, but see Advice if 1 yr or more was imposed | Yes, CIMT because fraudulent intent. Consider 529(a)(3), 530.5(a) | No other removal ground. | PC 532(a) AF and 1 year. Forgery, counterfeiting, theft with 1 yr or more imposed is an AF. These are not elements of 532(a), so no 532(a) conviction should be held an AF based on a 1-yr sentence. But best practice is to try to keep such conduct out of the ROC and/or get 364 days or less on any single count, to further protect defendant. See § N.4 Sentence. | 1260 |
| PC 532a(a)(1) | False financial statements in writing | AF if more loss to victim’s exceeds $10k. See 487 and discussion at 470. | Defenders assume CIMT per Ninth Circuit. Immigration advocates, see Advice. | No other removal ground. | PC 532a(a) CIMT. Ninth Cir held this is a CIMT as it amounts to fraud, so defenders must assume this is the case. Imm advocates may explore arguments against this, which were brought up in the panel’s dissent.142Although the statute does not mention fraud, the Ninth Circuit held that because 532a(a)(1) requires a knowing false representation in order to gain something of value, fraud in fact is an element. Tijani v. Holder, 628 F.3d 1071, 1078 (9th Cir. 2010), distinguishing § 530.5(a), which does not have an element of fraud, from § 532(a)(1), which it found to have such an element. | 1270 |
| PC 550(a) | Insurance fraud | See §532a(1) | See § 532a(1) | No other removal ground. |
See PC 532a(1) | 1280 |
| PC 591 | Tampering with or obstructing phone lines, malicious | Not AF because not COV: it need not involve force or threat. See endnote at CIMT. | Should not be CIMT but try to plead to mild acts and intent to annoy.143For purposes of § 591 malice is defined as follows: “… Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else.” CALCRIM 2902. The requirement of malice “functions to ensure that the proscribed conduct was a ‘deliberate and intentional act, as distinguished from an accidental or unintentional’ one.” People v. Rodarte, 223 Cal.App.4th 1158 at 1170 citing People v. Atkins (2001) 25 Cal.4th 76. Section 591 is not a specific intent crime; it requires the general intent to do the proscribed act. See Kreiling v. Field, 431 F.2d 502 (9th Cir. 1970) (upholding a § 591 conviction where a former telephone repairman moved two levers on the inside of a payphone so that he could make a free call, which then made it impossible for others to use). The disabling need not be permanent. See People v. Tafoya, 92 Cal. App. 4th 220 (Cal. App. 4th Dist. 2001) (conviction for removing battery from ex-wife’s phone when she tried to call her mother during an argument; ex-wife called from a landline instead). | Not COV so not deportable DV offense (but as always, keep ROC clear of threats, violence). To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). |
Can be good alternative to avoid deportable stalking or DV offense. While it always is best to get 364 days or less, this wobbler is not a COV and therefore is a good substitute plea to take 1 yr or more. | 1290 |
| PC 591.5 | Tamper with cell phone to prevent contacting law enforcement | Not AF: Not a COV (and has 6-month maximum sentence) | Conservatively assume CIMT, but immigration counsel may argue against that. | Not COV so not deportable DV offense (but as always, keep ROC clear of threats, violence). To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). |
CIMT: There are no cases interpreting elements and defenders should conservatively assume it may be a CIMT. To more securely avoid that, consider 148(a), 243(e), 459, 591, 594. Immigration counsel may argue against this, as a similar offense to PC 32, 136.1(b)(1).144No substantive cases define the offense. Immigration counsel may argue that this is analogous to Pen C § 32 for purposes of CIMT determination in the Ninth Circuit. It requires no violence or evil motive. | 1300 |
| PC 594 | Vandalism, Malicious Mischief (b)(1) at least $400 damage (b)(2) less than $400 damage | No conviction should be held a COV, but plead to (a)(1) (graffiti) if possible. See Advice. Try to get 364 days, but if 1 yr cannot be avoided, PC 594 is a reasonable offense to take it. See Advice. See § N.4 Sentence. | Not a CIMT, or conceivably divisible, but see Advice. | No other removal ground Not a deportable crime of DV because even if it were held to be a COV (which it is not), a deportable crime of DV requires violence toward a person, not property. Avoid a gang-based sentence enhancement if at all possible. This is critical if the client is not an LPR. See Advice. |
While there is no holding directly on point, there are strong arguments that PC 594 is not a COV or a CIMT. COV. Under PC 594(a), a person commits vandalism who “(1) defaces with graffiti… (2) damages, or (3) destroys” property they don’t own. Because courts have held and the Ninth Circuit has opined that graffiti is not a property crimes of violence,145See, e.g., U.S. v. Landeros-Gonzales, 262 F.3d 424 (5th Cir 2001) (graffiti is not a COV). Section 594 can be committed with minimal graffiti or defacing. See, e.g., In re Nicholas Y., 85 Cal.App.4th 941 (2000) (writing on a glass window with a marker that could easily be erased constituted “defacing”). See also In re Brittany L, 99 Cal. App. 4th 1381 (Ct. App. 2022) (throwing eggs at a house is vandalism). CIMT. Ninth Circuit held that a Washington vandalism statute with nearly identical elements of maliciously (intent to vex or annoy) causing damage (including graffiti) was not a CIMT, when the damage was any amount over $250 (in 1995 dollars).147See, e.g., Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995) (malicious mischief, where malice involves wish or design to vex, annoy, or injure another person), was not a CIMT under Wash. Rev. Stat. 9A.48.080, which at the time required damage of at least $250 (now requires damage of $750)). As discussed above, PC § 594 contains the same key elements as this Washington statute: malicious intent to deface, damage, or destroy. See also the discussion of PC 594 as a COV, above, and see People v. Kahanic (1987) 196 Cal App 3d 461 (conviction upheld when damage was to property jointly owned by defendant and victim). Accordingly, this conviction is not a CIMT. Under that standard, 594(b)(2) is not CIMT, and (b)(1) also should not be; its minimum conduct is damage of $400 (in 2024 dollars). Still, best practice where possible is to plead to (b)(2), even if greater amount in restitution is paid before plea or in separate civil agreement. Plead to intent to annoy (part of the definition of “malice”). Gangs and vandalism, CIMT. Try hard to avoid any gang enhancement, including for graffiti – just because any gang connection is a terrible negative factor in discretion for any immigrant factors for immigrant. Regarding CIMT and gangs, the BIA held that PC 594 with a gang enhancement is a CIMT. In a case involving a weapon and gang enhancement, however, the Ninth Circuit declined to follow the BIA’s holding that a California gang enhancement will turn a non-CIMT into a CIMT.148The BIA held that Pen C §§ 594 with 186.22(d) enhancement is a CIMT. Matter of E.E. Hernandez, 26 I&N Dec. 397 (BIA 2015). But the Ninth Circuit disapproved and declined to apply that case, holding that the gang enhancement does not transform a non-CIMT into a CIMT. Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015) (possession of billy club with Pen C § 186.22(b) is not a CIMT). SB 54. This is one of a few wobblers that do not destroy SB 54 protections that limit jailor’s cooperation with ICE. See SB 54 Advisory at https://www.ilrc.org/sites/default/files/resources/sb54_advisory-gr-20180208.pdf. | 1310 |
| PC 597(a), (b) | Torturing, abusing, animals (a) Severely neglecting animals (b) | Appears not to be a COV, although as always it is best to get 364 or less. See Advice. | 597(a). Assume this is a CIMT.149See Matter of Ortega Lopez, 27 I&N Dec 382 (BIA 2018) The Board held that commercial dog fighting, causing animals to suffer and die for entertainment, in violation of 7 USC 2156, a federal dog-fighting law, is a CIMT because it causes animals to suffer and die for entertainment. The Ninth Circuit deferred. Ortega-Lopez v. Barr, 978 F.3d 680, 681 (9th Cir. 2020). 597(b). BIA states recklessness is a CIMT if it is a conscious disregard of known risk of imminent death or severe injury to person. 597(b) can involve gross negligence, so it should not be held a CIMT.150Moral turpitude has been found to inhere in an offense if it has as an element a conscious disregard of a known risk that causes, or creates the “imminent risk” of causing, death or very serious bodily injury. See e.g., Matter of Franklin, 20 I&N Dec. 867, 870-71 (BIA 1994) (conscious disregard resulting in manslaughter), Matter of Leal, 26 I&N Dec. 20, 24-26 (BIA 2012) (conscious disregard causing a “substantial risk of imminent death”). PC 597(b) involves criminal negligence. People v. Speegle (1997), 53 Cal. App. 4th 1405, 14111412. The test for this is whether a reasonable person would have been aware of the risk involved; it can be found even when a defendant acts with a sincere good faith belief that his or her actions pose no risk. People v. Rippberger (1991), 231 Cal. App. 3d 1667, 1682, cited in Speegle at 1412. | No other removal ground. In unpublished decision, Ninth Cir upheld BIA finding that applicant’s 597(a) conviction was of a “particularly serious crime” and thus a bar to asylum, withholding.151See Madrid v. Holder, C.A.92013, 541 Fed.Appx. 789, 2013 WL 5530009. |
COV. 18 USC 16(a) includes force against “the person or property of another,” but not one’s own property. PC 597(a) is not divisible between animals that are one’s own versus another’s property. PC 597(b) is not a COV because it involves neglect, and the Supreme Court in Borden held that even reckless conduct is not a COV. See endnote on 597(b) as a CIMT and see further discussion of COV at 207. | 1320 |
| PC 597.5 | Participating in or being a spectator at dog fights | See PC 597 | Assume 597.5(a)(1) is a CIMT, because BIA and 9th Cir. held similar federal offense is CIMT.152See Matter of Ortega Lopez, 27 I&N Dec 382 (BIA 2018); Ortega-Lopez v. Barr, 978 F.3d 680, 681 (9th Cir. 2020) (BIA held commercial dog fighting in violation of 7 USC 2156(a)(1), causing animals to suffer and die for entertainment, is a CIMT; Ninth Circuit deferred). See advice for (a)(3), (b). | See PC 597. |
CIMT. 597.5(a)(3), permitting, in a place under one’s control, either dog fighting or another person owning a dog who intends to fight it, will be charged as a CIMT, but imm advocates can explore arguments that this requires less intent or has the goal of preventing a nuisance. PC 597.5(b) prohibits being a spectator at a dog fight. In 2018 the BIA noted that it has not yet addressed whether that conduct is a CIMT.153In Matter of Ortega Lopez, supra, the BIA declined to address whether being a spectator at a dog fight, under § 2156(a)(2), also is a CIMT. Matter of Ortega Lopez, 27 I&N Dec 382, 389-98 (BIA 2018). It noted that dogfighting “desensitizes spectators to brutality and violence and teaches ‘that inflicting pain is an acceptable form of amusement.’” Id. at 388. | 1330 |
| PC 602 | Trespass | Not AF (for one thing, 6-month max sentence) | Should not be CIMT See Advice. | See PC 594. 602(l)(4) (discharging firearm) is not deportable firearm offense due to antique firearms exception (see PC 417), but still best to avoid. |
See PC 602.5, below. Misd involving firearms is a “significant misdemeanor” and bar to DACA, but 1203.4 may work. See PC 25400. | 1340 |
| PC 602.5 | Trespass, residence | Not AF. | Not CIMT. | No other removal ground. | 1350 | |
| PC 646.9 | Stalking | Try to get 364 or less, but even with a year it should not be held an AF as COV. Plead to harassing rather than following. See Advice | The Ninth Circuit held it is a CIMT.154Orellana v. Barr, 967 F.3d 927 (9th Cir. 2020) | BIA reversed itself to hold that 646.9 is not a deportable “stalking” offense under the DV ground but see Advice. If this were held a COV, and D and V shared a protected relationship, it could be a crime of DV. But it should not be held a COV. |
See endnote for citations and further discussion of COV and stalking deportability ground.155For further discussion of immigration consequences of Pen C § 646.9 and the “stalking” basis for deportability, see ILRC, Case Update: Domestic Violence Ground of Deportation (June 2018) at www.ilrc.org/crimes. In sum: Conviction of “stalking,” whether or not a domestic relationship is involved, is a deportable offense. The BIA held that 646.9 is not “stalking.” See endnote. But because the law might be volatile, defenders may wish to make another plea, e.g., PC 241. CIMT: To avoid a CIMT, look to, e.g., 136.1(b)(1), 236, 243(a), (e), 459, 591, 594, etc. for alternatives. DACA: If DV-type victim, a misd is “significant misdemeanor” for DACA. See PC 25400. | 1360 |
| PC 647(a) | Disorderly: lewd or dissolute conduct in public | Not AF even if ROC shows minor involved156An age-neutral offense never is the aggravated felony sexual abuse of a minor. See, e.g., discussion in Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. 2012), and see § N.10 Sex Offenses. (but don’t let ROC show this) | Yes, held CIMT, although imm counsel can argue against this. Consider PC 370. See Advice. | To ensure not wrongly charged as child abuse, keep any minor’s age out of ROC. See 243(a). | PC 647(a) AF: Good alternative to sexual conduct near/with minor CIMT Older BIA decisions finding CIMT were influenced by anti-gay bias. Imm attys will argue they should not be followed,157However, Nunez-Garcia, 262 F. Supp. 2d 1073 (CD Cal 2003) re-affirmed these cases without comment; see cites in that opinion. but until there is precedent this presents a CIMT risk. Instead see 647(c), (e), (h). Adam Wash Act. If V under 18, this might trigger Adam Walsh provisions that can block a USC or LPR from obtaining immigration status for family in the future. See PC 288(a). | 1370 |
| PC 647(b) | Disorderly: Prostitution | Not AF | Always a CIMT, whether prostitute or customer.158Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012). To avoid, see 370, 647(a), (h) or “residing” under 315. | Inadmissible for “engaging in prostitution” if sufficient evidence the person engaged in an ongoing practice of offering sexual intercourse for a fee. Try to plead to a different offense; if that is not possible, plead to offering lewd act for a fee. See Advice. Victims of human trafficking. If the defendant might be a victim, see discussion at Advice to H&S C 11358. | PC 647(b) For more information and citations on the prostitution inadmissibility ground, see endnote.159The BIA has long defined prostitution for the inadmissibility ground as “engaging in promiscuous sexual intercourse for hire.” See, e.g., Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549, 553 (BIA 2008), citing 22 C.F.R. § 40.24(b), discussing the inadmissibility ground at 8 USC § 1182(a)(2)(D)(i). Section 647(b) punishes engaging in any lewd act with another person for money or other consideration, a broader definition. Lewd acts include touching of genitals, buttocks or female breast with the intent to sexually arouse or gratify. CALCRIM 1153. For this reason, the Ninth Circuit found that conviction of offering a lewd act for a fee under a Hawaiian statute similar to § 647(b) did not alone prove that an LPR returning from a trip abroad was inadmissible for prostitution. Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006). Engaging in prostitution within the previous 10 years, or intending to do so now, is a ground of inadmissibility. It can be proved by conduct and does not require a conviction. The definition for purposes of the inadmissibility ground is offering sexual intercourse for a fee. Section 647(b) is broader because it includes lewd acts for a fee. For that reason, for an LPR returning from a trip abroad, a conviction of 647(b) does not alone conclusively prove the person is inadmissible for prostitution. Just one or two incidents might not prove the person is “engaging in” prostitution. Customers are not inadmissible under the engaging in prostitution ground. However, any 647(b) conviction is a CIMT, which carries its own consequences. | 1380 |
| PC 647(c), (e), (h) | Disorderly: Begging, loitering | Not AF. | Not CIMT. | No other removal ground. | PC 647(c), (e), (h) Good alternate plea. Do not include extraneous admissions re, e.g., drugs, prostitution, etc. | 1390 |
| PC 647(f) | Disorderly: Under the influence of drug, CS, alcohol, | Not AF. | Not CIMT. | This should not be a CS offense, but best plea is to alcohol or “drug.” See Advice. | PC 647(f) should not be held divisible between alcohol, drug, and CS.160See discussion of divisible statutes at ILRC, How to Use the Categorical Approach Now (2021). See CALCRIM 2966, which does not require a jury to decide unanimously between alcohol, drugs, or controlled substances. But to provide extra protection for D, plead specifically to alcohol or if needed to “drug” rather than CS. | 1400 |
| PC 647(i) | Disorderly: “Peeping Tom” | Not AF | Should not be CIMT; See Advice | To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). | PC 647(i) CIMT: Should not be CIMT because offense is completed by peeking, with no intent to commit further crime161In re Joshua M., 91 Cal. App. 4th 743 (Cal. App. 4th Dist. 2001). The purpose of the law is “not to protect the property and safety of householders; it is designed to control ‘peeping Toms’ and other persons of that type.” People v. Lopez (1967) 249 Cal.App.2d 93, 103. but there is not case on point. | 1410 |
| PC 647.6 (a) | Annoy, molest “child,” defined as underage 18 | Not AF as sexual abuse of a minor (SAM) in Ninth Circuit. Unlikely, but possible, to be held SAM elsewhere. See Advice, and See § N.10 Sex Offenses. | Not CIMT in Ninth Circuit. | Does not appear to be being charged as child abuse, but no precedent. Imm counsel can argue against this due to no element of potential harm, Ninth Circuit rulings that it is not abuse, and fact that it includes persons up to age 17. But to avoid the problem, consider alternate plea. See Advice. | PC 647.6(a). See citations and analysis.162The Ninth Circuit held that the minimum conduct to commit Pen C § 647.6 is not an aggravated felony as sexual abuse of a minor. U.S. v. Pallares-Galan, 359 F.3d 1088, 1101 (9th Cir. 2004). Neither is the minimum conduct a CIMT, because as non-explicit, annoying behavior, it does not necessarily harm the victim. Nicanor-Romero v. Mukasey, 523 F.3d 992, 1000-1001 (9th Cir. 2008), partially overruled by Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (to the extent it and other decisions suggest that the BIA is not owed Chevron deference in moral turpitude cases)). If pleading to 647.6: Best practice is to ID nonexplicit, nonharmful conduct in the ROC, or keep ROC vague, in case authorities wrongly look to ROC to define the offense. Age-neutral offense to prevent deportable child abuse, SAM: The sure way to avoid any threat of SAM (outside the Ninth Circuit) or child abuse is a plea to age-neutral offense like 243, 236, 646.9, 647, 459, etc. In addition, while it should not be legally necessary, keep the ROC clear of reference to a minor V. See Advice to 243(a). Or, consider 273a(b), which does not have immigration consequences. Possibly a “significant misdemeanor” for DACA. See PC 25400. | 1420 |
| PC 653f(a), (c) | Solicitation to commit variety of offenses | Not AF as COV. See Advice regarding other AFs. | Yes, if the conduct solicited is a CIMT. | Not COV so not a deportable DV offense. | PC 653f(a), (c) The Ninth Cir held soliciting per 653f(a) (violent and theft offenses) and (c) (rape and other sex offenses) are COVs under 18 USC 16(b), but not under 16(a). Because the Supreme Court struck down 16(b) as void for vagueness, these offenses no longer are COVs.163Prakash v. Holder, 579 F.3d 1033 (9th Cir. 2009) (Pen C § 653f(a) is a COV under 18 USC § 16(b) but not under § 16(a)). The court acknowledged in dicta that the offense would not be an aggravated felony under 1101(a)(43)(U). Prakash at 1039. Solicitation to commit rape ought not to be held an AF as rape because the AF definition includes attempt and conspiracy, but not solicitation, to commit an AF. See 8 USC 1101(a)(43)(U) and above endnote. | 1430 |
| PC 653f(d) | Solicitation to commit drug offense such as 11352, 11379, 11391. | Solicitation to commit a drug offense is not a drug trafficking AF, in cases arising within the Ninth Circuit only. Outside the Ninth Circuit it can be an AF. | Solicitation will take on the CIMT quality of the offense solicited. The BIA has held that selling or giving away drugs is a CIMT. | See Advice regarding possible defenses against an inadmissible and deportable CS conviction. |
Deportable/ Inadmissible CS conviction. Two possible defenses. First, this plea can use the unspecified or nonfederal substance defenses. See 11377. Also, there is an argument that 11391 is not a CS offense. If that is true, soliciting it is not a CS offense. See 11391.Second, imm counsel can argue that this is not a deportable CS offense because it is generic solicitation.164See Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009), stating in discussion that because § 653f is a generic solicitation statute that pertains to different types of offenses, as opposed to a statute passed primarily to restrict controlled substances, it is not an offense “relating to” a controlled substance. But see Arriola-Carrillo v. Holder (9th Cir. 2015) WL1346157 (unpublished) which assumed that § 653(f) is a CS conviction and found that Lujan/Nunez does not apply to § 653f because it is not a lesser included offense of possession. For information on Lujan/Nunez, see H&S C § 11377 in chart. Trafficking penalties. Beyond being an AF, any offense that involves trafficking (commercial element) is a “particularly serious crime,” bad for asylees and refugees. It also can make D inadmissible by giving gov’t “reason to believe” D is involved in trafficking. See 11379. | 1440 |
| PC 653k Repealed See PC 21510, 17235 | Possession of illegal knife | Not AF | Not CIMT | Not deportable offense |
This is a good immigration plea. | 1450 |
| PC 653m (a), (b) | Electronic contact with (a) obscenity or threats of injury with intent to annoy; or (b) repeated annoying or harassing calls. | Not AF. (only a 6-month maximum sentence.) | (a) should not be CIMT b/c minimum conduct (intent to annoy) is not CIMT. 165Section 653m(a) should not be a CIMT because the minimum conduct to commit the offense is an intent to annoy, and may be committed by using obscene language, which has been defined as “offensive to one’s feelings, or to prevailing notions of modesty or decency; lewd.” People v. Hernandez (1991) 231 Cal.App.3d 1376. The statute should not be divisible as a CIMT because even if the offense involved a threat of injury, the mens rea required is an intent to annoy. Id. at 1381. For (b), to avoid possible CIMT charge plead to making calls with intent to annoy. | To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). See Advice for how to use this to avoid other DV deportation grounds. | PC 653m(a), (b) Good plea in a DV context. Deportable DV crime: If DV-type victim, plead under (a) to obscene call with intent to annoy, or (b) two phone calls intent to annoy. State on the record that calls did not involve any threat of injury. Or if possible plead to non-protected victim, e.g., repeat calls to the ex-girlfriend’s new girlfriend (no threats; intent to annoy). Deportable violation of DV protective order. Do not admit to violating a stayaway order in this or any other manner. Plead to new 653m offense rather than violation of an order. See discussion at PC 237.6, above. Deportable stalking: Stalking requires a threat, although it does not require a DV relationship. Plead to conduct described above. See also 591 and 646.9, above. | 1460 |
| PC 664 | Attempt | AF if attempted crime is an AF. See Advice if offense involves deceit with potential loss >$10k | CIMT if attempted crime is CIMT | Carries consequences of the attempted offense |
AF. Attempt and conspiracy are bad pleas where fraud or deceit results in loss to victim/s exceeding $10k.166One defense to fraud/deceit with a loss exceeding $10,000 is to plead to a single count where loss was less than $10k, and at sentencing agree to restitution order of more than $10k with a Harvey To make it crystal clear to immigration judges, if possible, state that the additional payment is due to dropped charges and uncharged conduct. Avoid a plea to attempt or conspiracy, which may give DHS more opening to include the whole amount. Instead plead to straight theft, PC 487, w/ less than 1 yr, or see PC 470 | 1470 |
| PC 666 | Petty theft with a prior | Theft as defined by 484 is not an AF even if 1 yr imposed, or loss exceeds $10k, but avoid getting both 1 yr and loss > $10k. See PC 484. | Yes CIMT. See Advice | No other removal ground. |
CIMT: If there is a CIMT prior, such as any 484 offense, this will be the dangerous second CIMT conviction. To avoid that, consider plea to PC 459, 496, or VC 10851. For rules governing when CIMTs trigger a removal ground, see n. 3xx. Prop 47 can reduce a qualifying prior 666 to misdemeanor. However, immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.167See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a) because federal law will not give effect to a state criminal reform statute that purports to retroactively change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. At the same time as pursuing that argument, seek PCR. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014). | 1480 |
| PC 1320(a) | Failure to appear for misdemeanor | Not AF. See Advice | Does not appear to be a CIMT | No other removal ground. | PC 1320(a) Not AF as obstruction because that requires 1 year, and not AF as FTA, because that requires FTA for a felony. | 1490 |
| PC 1320(b), 1320.5 | Failure to appear for a felony | AF even with 364 or less, as “FTA for felony.” See Advice. Get 364 or less on each count to avoid AF as obstruction of justice.168Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008) (holding that knowing failure to appear as ordered to face criminal charges under 18 USC § 1346 meets the generic definition of obstruction of justice and is an aggravated felony). | Does not appear to be a CIMT | No other removal ground. |
AF regardless of sentence: Even without a 1-year sentence, a conviction for FTA to answer to a felony charge punishable by at least 2 years, or to serve a sentence if the offense is punishable by at least 5 years, is an aggravated felony.169See 8 USC § 1101(a)(43)(Q), (T) and Renteria-Morales, supra, regarding the aggravated felony “failure to appear.” Do not plead to FTA for a felony; plead to another substantive offense. Get postconviction relief for a prior conviction. | 1500 |
| PC 4573 | Bring CS or paraphernalia into jail without permission | Appears not to be an AF because intent to distribute is not required, but 4573.5, .6 or .8. is far better. | Because the statute does not require intent to distribute, and permission could be granted, it ought not to be a CIMT. See 11377. | May be charged as deportable and inadmissible CS if federal CS is involved. While there are defenses, it appears that a plea to 4573.5, .6 or even .8 is far better. |
CS Conviction. A much better plea is to 4573.5 or .6. If that is possible, there are arguments that 4573 is not a CS offense for immigration purposes, based on the Graves decision on 4573.6.170Sections 4573 (bringing in) and 4573.6 (possessing) both prohibit conduct involving California controlled substances within a jail or similar area. The Ninth Circuit held that no conviction under 4573.6 is an offense relating to a federally defined controlled substance (CS). U.S. v. Graves, 925 F.3d 1036 (9th Cir. 2019). Therefore no 4573.6 conviction is a CS offense for any immigration purpose. Some, but not all, of the Graves findings also apply to 4573. The following is an argument that 4573 also can benefit from Graves, but 4573.6 is far safer. See Advice to 11377 regarding non-federally defined substances. See. | 1520 |
| PC 4573.5 | Brings alcohol, non-CS drug, or paraphernalia into jail | Not an AF | Should not be a CIMT | No other removal grounds; see advice. |
Not CS offense. Good alternative to 4573 and other offenses involving a CS. Try to plead to alcohol for extra safety, although that should not be necessary: 4573.5 prohibits alcohol or “any drugs, other than controlled substances,” where one court held “drugs” includes medicine such as antibiotics.171See, e.g., People v. Ortiz (1962) 200 Cal. App. 2d 250, 254 (“The word ‘drug’ as used in the code section in question, inasmuch as the Legislature did not specifically define the word in the section itself, must be understood in its ordinary and normal meaning, that is to say, medicines or the components thereof for internal or external use.” Ortiz found that unauthorized possession of Darvon (a sedative) and of Achromycin V (tetracycline, an antibiotic) met the definition of “drugs in any manner, shape, form,” under the former language of Pen C 4573.6. Currently, Pen C 4573.5 uses that same language, but with the explicit exclusion of controlled substances: “drugs, other than controlled substances, in any manner, shape, form.…” CIMT. As a regulatory offense that does not involve illegal substances, this should not be a CIMT. | 1530 |
| PC 4573.6 | Possess CS’s in jail without permission | Not a CS offense, per Ninth Circuit. Even if it were, it should not be an AF. | Should not be a CIMT because it just involves possession without permission. | No other removal grounds, but see Advice. |
Not CS offense. Ninth Circuit held PC 4573.6 is overbroad as a CS offense because it includes substances not listed in federal schedules, and it is indivisible, in US v Graves (May 2019).172The Ninth Circuit held that no conviction under 4573.6 is an offense relating to a federally defined controlled substance. U.S. v. Graves, 925 F.3d 1036 (9th Cir. 2019). See discussion of Graves in endnote to PC 4573, above. Thus no conviction is a deportable and inadmissible CS, at least within Ninth Circuit. Still, where possible keep ROC clean of reference to specific CS that is on a federal list. | 1540 |
| PC 4573.8 | Possess drugs or alcohol or instrument to use them in jail | Not AF | As a regulatory offense (possess without permission), should not be a CIMT | Should not be a deportable or inadmissible CS offense, but for safety plead to alcohol or look at 4573.5, .6. |
CS. The term “drugs” is not divisible, and read in conjunction with 4573.6, it should be interpreted to include medicine that is not a controlled substance similar to 4573.5. But 4573.5 is safer, unless one can plead to alcohol. | 1550 |
| Former PC 12021 (a) Repealed 1/1/12 See also current PC 29800, 30305 | Drug addict, misdemeanant, or felon who possesses or owns firearm, ammunition | Possession by felon or addict is not an AF due to the antique firearms rule.173Conviction under § 12021 does not come within the firearms deportation ground because the statute reaches and has been used to prosecute antique firearms. U.S. v. Aguilera-Rios, supra. See further discussion at PC 29800. | Arguably not CIMT because simply owning a weapon (even up to a sawed-off shotgun) is not a CIMT. | Not deportable under the firearms ground due to antique firearms rule; see discussion at PC 12020, 29800. | . | 1570 |
| PC 12022 (a), (b), (c) | Sentence enhancement for carrying a firearm during a felony. See Advice for detailed description: | (a)(1), (c) should not be held a COV unless underlying felony is, but no there is no case on point.174For example, in Medina-Lara, 771 F.3d 1106 (9th Cir. 2014), Mr. Medina-Lara was convicted of H&S C § 11351, possession with intent to sell, with an enhancement for carrying a gun during the felony, under Pen C § 12022(c). The offense was held not to be a drug trafficking aggravated felony for deportation purposes because the record did not prove a federally defined controlled substance. The Ninth Circuit did not discuss whether the offense was a crime of violence, because apparently the government never charged this. But arguably since possession for sale is not a crime of violence, doing so while having a weapon available but not using it is not. Assume that (b), with use of a firearm, is a COV. (a)(2) may be an AF as an analogue to 18 USC 922(o) | Use of weapon likely to be held CIMT; armed w/ weapon might not be. | (a)(1), (c) are not deportable under the firearms ground due to antique firearms rule.175Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (the definition of “firearm” at § 12001(b) (now moved to § 16520(a)) that is used in § 12022(c) is overbroad because it includes antique firearms). Note that the definitions of “assault weapon” and “.50 BMG rifle” expressly exclude antique firearms. | PC 12022 is a sentence enhancement for carrying a firearm during the attempt or commission of a felony, including: (a)(1) Principal (includes accomplices) armed with firearm; (a)(2) Principal (includes accomplices) armed with machine gun, assault weapon, .50 BMG rifle; (b) Personal use of deadly/ dangerous weapon; (c) Personally armed w/ a firearm AF: To avoid a possible AF as a COV, try to plead to simply possessing a weapon (including most firearms) which can take more than a year without being a COV; if needed plead to an additional offense involving actual violence with less than a year’s sentence. See § N.4 Sentence. | 1580 |
| PC 12022.1 | Enhancement for felony com-mitted while released pending other felony charge | Does not appear to add an AF-type element, but see Advice re increased sentence, which makes certain offenses become AFs. | Does not appear to be CIMT. | Does not trigger other removal grounds, but see Advice regarding sentence. |
If sentence is imposed, this adds 2 years to sentence for underlying offense and requires all counts to be consecutive. Can cause problems due to:
| 1590 |
| PC 12022.7 | Enhancement for inflicting GBI during commission of a felony | Not COV per se. But see Advice. | Not CIMT per se; does not turn a non-CIMT into a CIMT. See Advice | No other removal ground. |
COV. The only intent required is intent to commit the underlying felony, or at most negligence. But in light of a (questionable) recent decision on PC 243(d), approach with caution. DUI with 12022.7 should not be a COV, but offenses that involve intentional conduct, such as 243.4, 207, 459, might be charged as COV with this enhancement.176See, e.g., discussion at People v. Poroj (2010)190 Cal. App. 4th 165, 166 (holding no mens rea requirement, distinguishing other cases holding general intent requirement). See also U.S. v. Ramos-Perez, 572 Fed.Appx. 465 (9th Cir. 2013)(unpublished), distinguishing prior version of 12022.7, which requires specific intent with current version, which does not. However, in U.S. v. Perez, -F.3d- (9th Cir. July 11, July 25, 2019), a panel found that 243(d), battery that results in injury, could not be committed with an offensive touching, because only violent force can cause injury. See discussion at § 243(d). While this opinion appears to be in error, it may encourage ICE to charge that a burglary or other offense is a COV if combined with this enhancement. | 1600 |
| Former PC 12025(a), 12031(a) Repealed 1/1/12. See also current 25400, 25850 | Carrying firearm (concealed or loaded in public place) | Not AF. | Not CIMT. | Not deportable under the firearms ground due to antique firearms rule; see discussion at PC 29800, and 25400, 25850 | Misd involving firearms is a “significant misdemeanor” and thus an enforcement priority and bar to DACA; see note at PC 25400. | 1610 |
| PC 17500 | Possession of deadly weapon with intent to assault another. | Not AF because (a) 6-month max sentence, plus (b) arguably because minimum conduct involves offensive touching. | While arguably it should not be CIMT, it might be charged as such and is not sure to avoid a CIMT. See Advice. | Not a deportable firearms offense, but best practice is a plea to a non-firearm or to leave ROC blank; see Advice. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). To surely avoid deportable DV offense, best practice is to either identify a specific V with no domestic relationship (e.g., neighbor, police), or plead to a different offense; see Advice. 17500 should not be held a COV but there is no precedent. |
CIMT/COV: To best avoid a CIMT or COV, consider PC 417, or 243(a) if necessary with PC 21310 or 25400. However, 17500 is preferable to PC 245 as a way to avoid a CIMT or COV. In that case, to provide extra security try to plead to intent to commit offensive touching, and possession of weapon but not intent to use or threaten. 177Defenders warn that PC 17500 may be held a CIMT because it is a specific intent crime; the language of PC § 17500 includes “with intent to” and the relevant jury instruction (CALCRIM No. 2503) requires the jury to find intent to assault beyond a reasonable doubt. In contrast, PC § 417 is a general intent crime. Firearms ground: Not a deportable firearms offense due to antique firearms rule; see discussion at 29800. Also, statute should be held not divisible. Assume an ROC identifying a firearm will be a “significant misdemeanor” firearms offense for DACA. Keep ROC clean of firearm and see note at PC 25400. | 1620 |
| PC 20010, 21310, 22210, 21710, etc. | Possession of weapon other than firearm; see Advice | Not COV178United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003). or AF. Can take more than 1 yr sentence. See Advice | Not CIMT179Even possessing a sawed-off shotgun is not a CIMT. Matter of Hernandez-Casillas, 20 I&N Dec. 262, 278 (BIA 1990). Possession of concealed non-firearms weapons offenses are general intent crimes. People v. Rubalcava, (2000) 23 Cal.4th 3221 (interpreting former Pen C § 12020, which encompassed a variety of weapons and now is renumbered into separate offense statutes; see Pen C § 16590 for list). | No other removal ground. (Stun gun does not meet definition of firearm)180A stun gun does not meet the definition of firearm, which must be explosive-powered. A stun gun is defined as a weapon with an electrical charge. Pen C § 17230. |
Good alternate plea to avoid CIMT, firearm, or COV. Includes possession of blowgun, dirk, dagger, knuckles, blackjack, stun gun. | 1630 |
| PC 25400(a) | Carrying concealed firearm | Not an AF, but as always try to get 364 or less on each count. | Not CIMT. | Not deportable firearms offense under antique firearms rule;181This is not a deportable firearms offense because it uses the definition of firearms at Pen C § 16520. See CALCRIM 2520 and see Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014), U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). see discussion at PC 29800. |
DACA. Some misdemeanors are “significant misdemeanors” and thus a bar to DACA.182As of this writing in August 2018, persons who have received DACA are permitted to apply for renewal, but many other decisions are tied up in lawsuits. For updates go www.ilrc.org/daca and www.unitedwedream.org. For a description of DACA eligibility and crimes bars, see the section on DACA in § N.17 Relief Toolkit (August 2018) at www.ilrc.org/chart. These include a misd relating to firearms, burglary, DV, sexual abuse, drug trafficking, and DUI, as well as any misd with a sentence imposed (not including suspended) of over 90 days. Conservatively assume that the antique firearms exception will not prevent this, and that a crime of DV will be very broadly defined. Three misd convictions of any kind, arising from three separate incidents, have the same effect. Expungement under PC 1203.4 might eliminate the conviction/s for these purposes. A single felony conviction also is a bar to DACA, Reduction to a felony per PC 17 will eliminate this bar. In all cases, even if a conviction is not a bar, it can be a negative discretionary factor. See materials on DACA cited in above endnote. | 1640 |
| PC 25850 | Carrying loaded firearm in public | Not an AF, but as always try to get 364 or less on each count | Not a CIMT | Not deportable firearms offense under antique firearms rule. See discussion at 29800. | 1650 | |
| PC 26350 | Openly carrying unloaded handgun in public place | Not an AF, but as always try to get 364 or less on each count | Not CIMT | Assume it is deportable firearms offense because, like the federal definition, this excludes antiques—but imm advocates can seek arguments against this.183Pen C § 26350 specifically excludes unloaded antique firearms. See Pen C § 16520(d)(5). The definition of unloaded firearm may be a categorical match with the federal definition of firearms in 18 USC § 921(a). Defenders or immigration counsel can investigate whether the definition of antique firearm in this statute does not entirely match the federal definition (for example, the federal definition includes replicas), and if it does not, they can investigate whether there ever has been a prosecution of an unloaded antique replica. |
Bad plea if avoiding deportation ground is the goal. Consider, instead a firearms offense that does not come within the firearms deportation ground because of the antique firearms exception, e.g., 25850 (carrying loaded firearm in public) Misd is a “significant misdemeanor” for DACA; see Advice at PC 25400. | 1660 |
| PC 27500 | Sell, supply, deliver, give possession of firearm to persons whom seller (a) knows or (b) has cause to believe is a prohibited person | Sale is not AF as firearms trafficking due to antique firearms rule. Try to give added protection with plea to deliver or give, which lacks commercial element. | Unclear; might be CIMT. See Advice | Not deportable under firearms ground due to antique firearms rule. See discussion in PC 29800. |
CIMT: Some courts have stated that unlicensed sale, as opposed to, e.g., gunrunning for gangs, is a regulatory offense and not a CIMT.184See, e.g. Ali v. Mukasey, 521 F.3d 737, 740 (7th Cir. 2008) (unlicensed trafficking of firearms should not be CIMT if is mere failure to comply with licensing or documentation requirements); cited with approval in Efagene v. Holder, 642 F.3d 918, 923 (10th Cir. 2011). 27500 does not require bad intent or even commercial gain but does include prohibited person. 27500(b) (having cause to believe buyer is a prohibited person) may be better than 27500(a) (knowing this). Misd is a “significant misdemeanor” and thus an enforcement priority and bar to DACA, but 1203.4 may work. See PC 25400. | 1670 |
| PC 29805 (formerly PC 12021 (c)) | Possess, own, etc. firearm after conviction of certain misdemeanors | Not AF Possession by misdemeanant is not an AF | Should not be CIMT. Owning might be better than possessing | Not deportable firearms offense; see discussion in PC 29800. |
See discussion in 29800 DACA: Misd is a “significant misdemeanor”; see 25400 advice | 1680 |
| PC 30305 | Possession or ownership of ammunition by persons described in 29800 | Divisible as AF; see Advice. To avoid AF, plead to 29800. | See 29800 | Not deportable firearms offense; see Advice. Being an addict can cause deportability, inadmissibility. See § N.8 Controlled Substance. |
AF: To surely avoid AF and deportable offense, plead to 29800. If the plea is to 30305: AF includes possession of ammunition by a felon, addict, etc. To avoid an AF, plead to misdemeanant in possession. It is possible but not guaranteed that a plea to owning rather than possessing ammo as a felon or drug addict is not an AF. See discussion of “owning” at the endnote at PC 29800, above. Deportable firearms offense. The firearms deportation ground does not include ammunition.185The deportation ground at 8 USC § 1227(a)(2)(C) includes possessing, carrying, selling etc., “firearms or destructive devices” as defined at 18 USC § 921(c), (d). Those sections do not include ammunition in the definition. In contrast, some offenses are aggravated felonies because they are analogous to certain federal felonies, some of which do include ammunition. That is why being a felon in possession of ammunition is an aggravated felony, although it would not be a deportable firearms offense. (Although the firearms AF definition does in some cases; see above.) | 1690 |
| PC 33215 | Possess, give, lend, keep for sale, a short-barreled shotgun or rifle | Sale is an AF as trafficking. Felony possession is not a COV but as always try to avoid 1 yr. See Advice | Possession is not a CIMT.186Matter of Hernandez-Casillas, 20 I&N Dec. 262, 278 (BIA 1990) and see Matter of Granados, 16 I&N Dec. 726, 728-9 (BIA 1979) (holding that possession of sawed-off shotgun is not a crime involving moral turpitude), abrogated on other grounds by Matter of Wadud, 19 I.&N. Dec. 182, 185 (BIA 1984). See Advice. | Yes, a deportable firearms offense; the antique firearm exception does not apply.187“Short barreled shotgun as described in 33215” is listed in Pen C § 16590, defining prohibited weapons. Section 16590 expressly excludes antique firearms; see Pen C § 17700. |
COV: While older decisions held felony possession of these weapons is a COV under 18 USC 16(b), these decisions were abrogated by the Supreme Court’s holding that 16(b) is void for vagueness.188Sessions v Dimaya, 138 S Ct 1204 (2018). See discussion at Pen C § 207, above. See PC 207. CIMT: If possession is not a CIMT it should follow that lending or giving also is not, but there is no precedent on those, or the more dangerous offense of sale, so try hard to plead to possession. Misd is a “significant misdemeanor” and bar to DACA but 1203.4 may eliminate it. See PC 25400. | 1700 |
| PC 32625, 33410 | Possession of silencer; possession or sale of machinegun | See 33215 | See 33215 | Yes, deportable firearms offense |
See 33215 | 1710 |
| VC 20 | False statement to DMV | Not AF | Should not be a CIMT. See Advice | No other removal ground. |
CIMT. This need not be a material false statement and there is no element of intent to gain a benefit. To avoid CIMT, plead to a specific false fact that is not material. However, the offense appears to be indivisible. If it is, then no convictions should be a CIMT. | 1720 |
| VC 31 | False info to officer | Not AF | See VC 20 | No other removal ground. |
See VC 20 | 1730 |
| VC 2800(a) | Refusal to obey order by peace officer | Not AF as obstruction (and 6-month maximum) | Not CIMT; can be committed by minor conduct | No other removal ground | 1740 | |
| VC 2800.1 | Flight from peace officer | Not AF as obstruction of justice (364-day maximum). Not AF as COV; see 2800.2. | Not CIMT189A conviction under Veh C § 2800.1 is not a CIMT. The Ninth Circuit held that Veh C § 2800.2, which requires the same conduct but with the addition of recklessness, is not a CIMT. See discussion of Ramirez-Contreras v. Sessions, 858 F.3d 1298 (9th Cir 2017), below. See also Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011), where the BIA found that the offense of driving a vehicle while eluding a police officer under Wash. Rev. Code § 46.61.024 was a CIMT because it had as an aggravating factor wanton or willful disregard for lives or property. Section 2800.1 does not have those elements. | No other removal ground. | 1750 | |
| VC 2800.2 | Flight from peace officer with wanton disregard for safety; can be proved by 3 traffic violations. | Seek 364 days or less in case it is charged as an AF as obstruction of justice. See Advice. Not an AF as COV because it involves recklessness. | Ninth Circuit held not a CIMT due to three traffic violations alternative. If possible, plead specifically to three traffic violations per 2800.2(b), although legally this is not required. See Advice. | No other removal ground. |
See endnote for discussion of COV and CIMT.190Veh C § 2800.2(a) punishes a person who “flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property …” Section 2800.2(b) provides “For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.” AF. Obstruction of justice is an AF, if a year or more is imposed. Counsel should assume conservatively that VC 2800.2 meets the definition of obstruction. See discussion of the Supreme Court decision on obstruction, Pugin v. Garland, No. 22-23 (June 22, 2023), at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence. CIMT: Wanton disregard for safety can be demonstrated by three traffic violations, per 2800.2(b). That conduct is not a CIMT under current law. The Ninth Cir held that 2800.2 is not divisible between three traffic offenses and other wanton disregard. This means that all 2800.2 convictions must be evaluated based on the ‘three traffic violation’ standard under the categorical approach. 2800.2 is also not a COV because it can be committed by recklessness. See Borden v. U.S See further discussion of COV at PC 207. The reason to try to have a specific plea to the three traffic offenses / 2800.2(b) is that, while it is not legally necessary, in practice many judges and officers will not know that the statute is not divisible, and they will rely on the person’s record of conviction, and the person may be unrepresented. If there is an immigration atty, or just a functional defendant or family member, try to provide them with the text of the endnote, above. | 1760 |
| VC 4462.5 | Display improper registration w/ intent to avoid vehicle registration requirement | Not AF. | Not CIMT. | No other removal ground. |
This might be a minor traffic offense and not count for purposes of the three-misdemeanor bar to DACA. See PC 25400. | 1770 |
| VC10801-03 | Operate Chop Shop; Traffic in vehicles with altered VINs (vehicle identity numbers) | Get 364 on each count to avoid AF. Also can be AF if loss to victim/s exceeds $10k. Consider alternate plea such as PC 487, which can take 1 year or $10k loss, or 459, which might be able to take both. See Advice. | Yes CIMT | No other removal ground. | VC10801-03 AF based on 1 year: A few AF categories might apply if 1 yr or more is imposed, such as receipt of stolen property, trafficking in vehicles where VIN has been altered, or even counterfeiting or forgery. If 1 yr can’t be avoided, try to plead to an offense such as 459, 487, or 594. If 1 yr was imposed on a prior, imm counsel may investigate arguments that 10801 is not an AF even with 1 yr.191Trafficking in vehicles with altered vehicle identification numbers (VIN) is an aggravated felony if a sentence of a year or more is imposed. So is theft, including receipt of stolen property. See 8 USC § 1101(a)(43)(R), (G), respectively. While arguably this offense is not an AF under the VIN category, defenders should assume conservatively that it will be held an AF as receipt of stolen property if a sentence of a year is imposed. AF based on $10,000 loss. If loss = the value of vehicles, this could amount to $10k loss to victim/s. Arguably 10801 is not a crime of fraud or deceit because it can involve theft192A crime of fraud or deceit is an aggravated felony if the loss to the victim/s exceeded $10,000. 8 USC § 1101(a)(43)(M)(ii). Section 10801 can involve a vehicle taken by either fraud or theft. Because the statute appears not to be divisible (because there is no requirement that a jury decide whether theft or fraud was the conduct), it should be judged according to the minimum conduct, which need not include fraud. Still, make every effort to avoid the $10k loss. See Pen C §§ 484 and 470 in chart. (See ILRC, How to Use the Categorical Approach Now (2021) for more information.)—but the act of altering the vehicle might be held to be deceit. By far the best practice is plea to theft with loss of $10k but not with 1 year, or burglary. See discussions at 487 and 470, and see § N.11 Burglary, Theft and Fraud. | 1780 |
| VC 10851 | Vehicle taking, temporarily or permanently | Always an AF if a year or more is imposed. Get 364 days or less. This is a change based on the 2023 Pugin decision. See Advice. | Never a CIMT regardless of info in the ROC.193CIMT: The minimum conduct to commit § 10851 is a taking with intent to temporarily deprive, and that conduct is not a CIMT. Because § 10851 is not divisible under the categorical approach, no conviction of 10851 is a CIMT for any immigration purpose, regardless of information in the record. Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (en banc). To give D extra protection against an adjudicator’s mistake, try to make a specific plea to intent to deprive temporarily. But if that is not possible, note that many adjudicators know that 10851 is not a CIMT. | No other removal ground. |
AF. See citations and further discussion here.194 10851 as an AF. Before June 2023, in the Ninth Circuit no conviction of VC §10851 was an AF, even if a year or more was imposed. Under 8 USC 1101(a)(43)(G), (S), both a “theft” offense and an “obstruction of justice” offense are AFs with a year or more. The Ninth Circuit had found that auto-taking under § 10851 met the generic definition of “theft,” but that accessory after the fact under § 10851 did not meet the generic definition of obstruction as defined in Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1056-58 (9th Cir. 2020). The Ninth Circuit further found that under the categorical approach, § 10851 was not divisible between auto-taking and accessory. Because § 10851 was overbroad and indivisible, no conviction could be found an AF. Lopez-Marroquin v. Barr, 955 F.3d 759, 760 (9th Cir. 2020)
Offenses that meet the generic definition of theft or obstruction of justice offenses are AFs if a year or more is imposed. 8 USC 1101(a)(43)(G), (S). VC 10851 includes auto taking, which meets the definition of “theft,” and being an accessory after the fact to the taking, which we must assume meets the definition of “obstruction of justice” under Pugin v. Garland, No. 22-23 (June 22, 2023). Defenders must assume that any conviction of 10851 is an AF if a sentence of a year or more is imposed. Immigration advocates should try to vacate the conviction. Advocates will argue that Pugin should not apply retroactively to convictions from before September 11, 2018, but we cannot rely on that. For further discussion of Pugin and arguments, see Advice to PC 32, above, and see ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). For information on how to structure a sentence to avoid a year or more for immigration purposes, see § N.4 Sentence. Alternatives. If a year will be imposed, or might if there is a VOP, plead to PC 459, 1st or 2nd degree. This is immigration neutral (except it is a to DACA). Note that a plea to grand theft, PC 487, may not be safe. While 487 can take a sentence of a year or more without being an AF, it will be an AF if on the same count there is a sentence of a year or more, and the loss to the victim/s exceeds $10,000. See Advice to PC 484, above. If the car at issue might be worth more than $10,000, ICE might charge 487 with a year as an AF. SB54: This is one of the few wobblers that is not an exception under SB54 and so should not be transferred to ICE. | 1790 |
| VC 10852 | Tampering with a vehicle | Not AF; and a misdemeanor | Should not be held a CIMT. See Advice. | No other removal ground. |
CIMT. Never a CIMT because it involves minor interference with and no intent to deprive owner.195“An accepted definition of ‘tamper’ is to ‘interfere with.’” People v. Anderson (1975) 15 Cal.3d 806. Opening a door of an unlocked vehicle without the owner’s consent is tampering. People v. Mooney (1983) 145 Cal.App. 3d 502. This is a lesser-included offense of Veh C § 10851 and requires no intent to deprive the owner. | 1800 |
| VC 10853 | Malicious mischief to a vehicle | Not AF | Should not be CIMT; try to plead to intent to annoy. See Advice | No other removal ground. |
CIMT: While no conviction should be held CIMT, to avoid possible wrongful charge as CIMT plead to intent to manipulate a lever or other minor offense.196The minimum conduct to commit Veh C § 10853 includes non-CIMT conduct such as merely moving levers or climbing onto or into vehicle, and the specific intent can be to commit a crime not involving moral turpitude. See § 10853 and Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). | 1810 |
| VC 12500 | Driving without license | Not AF. | Not CIMT. | No other removal ground. |
DACA: This should be a minor traffic offense and not part of the three-misdemeanor bar. | 1820 |
| VC 14601.1 14601.2 14601.5 | Driving on suspended license with knowledge | Not AF | Not CIMT—but see Advice if DUI is involved and warn client it is conceivable that a CIMT could be wrongly charged. | No other removal ground |
CIMT: A single Arizona offense that has as elements DUI while knowingly driving on a suspended license was held a CIMT.197Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). No single CA offense combines DUI and driving on a suspended license, and it is well established that the gov’t is not permitted to combine two offenses to try to make a CIMT.198See, e.g., Matter of Short, 20 I&N Dec.136, 139 (BIA 1989) (“Moral turpitude cannot be viewed to arise from some undefined synergism by which two offenses are combined to create a crime involving moral turpitude, where each crime individually does not involve moral turpitude.”) But to avoid any mistaken charges, where possible plead to driving on a suspended license on a different date than the DUI.199The Ninth Circuit has held that the factual basis for one offense cannot be used to characterize a separate and distinct offense. See Aguilar-Turcios v. Holder, 691 F.3d 1025 (9th Cir. 2012), substituted for 582 F.3d 1093 (9th Cir. 2009). DACA: This is a minor traffic offense and not a misd for purposes of three misd bar to DACA—but multiple convictions may be a basis for denial. See PC 25400. | 1830 |
| VC 15620 | Leaving child in vehicle (infraction) | Not AF. | Not CIMT. | Conceivable that ICE would charge this as a deportable crime of child abuse. See suggestions in Advice. If D has a prior 15620 and did not have counsel (or had counsel who did not warn), use PC 1473.7 to vacate this. |
Child abuse: Defenders must conservatively assume that a California infraction will be treated as a conviction for imm purposes. See 11358. Even if it is, arguably the elements of 15620 do not constitute deportable child abuse under BIA decisions. But because the child abuse deportation ground is broadly defined and widely charged, seek a different disposition. Explain to DA that this infraction could destroy this family. Put off hearing until D completes conditions such as parenting classes, then ask to drop charges. Or if necessary, consider pleading up to 273a(b). For a prior conviction, PC 1473.7 is post-conviction relief that is appropriate in many contexts. Where there was no counsel at all, as there may not be with a prior infraction, it should be granted nearly automatically. | 1840 |
| Veh C. 16025 | Failure to exchange info after accident (infraction) | Not AF | Not CIMT; see VC 20001 | No other removal ground | Assume conservatively that gov’t will treat an infraction as a conviction for imm purposes (see 11358), but this still has no immigration effect. | 1850 |
| VC 20001, 20003, 20004 | Hit and run (felony) | Try to get 364 days or less to avoid possible AF charge as obstruction of justice, although immigration advocates would have very strong arguments against this. See Advice | Divisible as a CIMT. See Advice. Assume 20001 enhancement under 20001(c) is CIMT. | No other removal ground. |
AF as Obstruction. Obstruction of justice is an AF if a year or more sentence is imposed. INA 101(a)(43)(S). Defenders should act conservatively and try to avoid a sentence of a year on any single count, in case ICE charges this as obstruction of justice under Pugin v. Garland, 599 U.S. 600 (2023). See discussion of obstruction and Pugin at PC 32 Advice. There are strong arguments that hit and run, which does not include intent to avoid a legal process, is not obstruction — but given the vague definition set out in Pugin, ICE might charge it. If a year or more is needed consider a plea to felony vandalism, which could be coupled with reckless driving. If lot of time is required, VC 20001 can be the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence CIMT. See endnote for citations and further discussion.200See Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008) (finding that VC § 20001(a) is not categorically a crime involving moral turpitude because it could include acts without evil intent, e.g., stopping and providing contact and insurance information but failing to provide vehicle registration number). The statute is divisible because a jury must unanimously decide which duty defendant failed to perform. CALCRIM 2140, 2141, 2150, 2151. See also Conejo-Bravo v. Sessions, 875 F.3d 890 (2017) (agreeing with BIA and IJ that 20001(a) is divisible and finding under the modified categorical approach that respondent’s conviction was a CIMT because he pled to failure to stop). Is a guilty plea stating that D failed to provide registration information, with no statement regarding whether they also failed to stop, sufficient to prevent a finding that the conviction is a CIMT? It may not be where the person is applying for relief – for example, if D is an undocumented person or a deportable LPR who must apply for cancellation, a family visa, or other relief. In Pereida v. Wilkinson, 141 S.Ct. 754 (2021), the Supreme Court held that an applicant for relief has the burden to prove that a conviction under a divisible statute is not a bar to relief. This may be interpreted to mean that silence on the failure to stop issue will be insufficient to prove the person was not convicted of that. For that reason, the safe plea for an undocumented person is to state specifically that they did stop. When the issue is deportability, the burden of proof shifts: ICE has the burden to prove that a conviction under a divisible statute is a deportable offense. Thus, if an LPR is charged with being deportable based on a CIMT conviction, and the record of conviction is silent as to whether they stopped, ICE would not be able to meet its burden to prove that the hit and run was a CIMT. However, in Pereida the Court suggested that evidence from outside the record of conviction can be considered in this inquiry, and that Shepard does not apply in removal proceedings. This may mean that ICE could produce other records to try to prove that the LPR did not stop. The really safe course would be a specific plea to having stopped but having failed to provide registration information. In many cases, this will not be possible. In the alternative, consider pleading to offenses other than hit and run that are not CIMTs but that fit the facts, e.g., lower-level reckless driving plus vandalism.201 To avoid a CIMT, assume it is necessary to plead to “failure to provide registration information” and further to state affirmatively that the person did not fail to stop (i.e., state that they did stop). Assume that this is necessary for any person who must apply for relief, and highly advisable for an LPR who is defending against a charge of being deportable, who needs to avoid a CIMT. Consider the following: “I plead guilty to failure to provide registration information. I do not plead guilty to failure to stop” (or if possible, “I plead not guilty to failure to stop”) To avoid a CIMT, consider VC 23103 misd or PC 594,or a combination. | 1860 |
| VC 20002 (a) | Hit and run (misd) | Not AF. | Dangerous as a CIMT; see Advice to 20001202See, e.g., Serrano-Castillo v. Mukasey, 263 Fed.Appx. 625 (9th Cir. 2008) (“Put simply, the rationale for our holding in Cerezo applies with equal force to § 20002. Violations of Cal. Vehicle Code § 20002 do not categorically involve moral turpitude”) [Redacted] AAO decision, 2010 WL 5805336 (Mar. 5, 2010) (“The AAO finds that the Ninth Circuit’s determination that Cal. Vehicle Code § 20001(a) is not categorically a crime involving moral turpitude applies with equal weight to a violation of Cal. Vehicle Code § 20002(a).”). In finding that Veh C § 20002(a)(2) was not categorically a CIMT, the Ninth Circuit reasoned, in an unpublished case, that § 20002(a)(2) could be violated by a person who, “after hitting a parked car, leaves his name and address in a conspicuous place on the parked vehicle but fails to report the incident to the local police department.” Serrano-Castillo v. Mukasey, 263 Fed.Appx. 625 (9th Cir. 2008). | No other removal ground. |
See VC 20001 and notes for advice about divisibility and specific pleadings to avoid CIMT. Try for Veh C 16025 (infraction failure to exchange information) | 1870 |
| VC 23103 | Reckless driving | Not AF as COV plus potential sentence of less than a year | Should not be held a CIMT.203Recklessness that might damage property or harm persons generally is not held a CIMT. For example, the Foreign Affairs Manual, which guides issuance of immigrant visas, states that reckless driving is not a crime involving moral turpitude. See 9 FAM 40.21(a) N2.3-2. See Advice. | No other removal ground |
CIMT: While 23103 and 23103.5 should not be held CIMTs under any circumstances, best practice is to plead to recklessness re property.204This discussion considers the definition of recklessness that applies to Veh C § 23103, which is a conscious disregard of a known risk. Sections 23103 and 23103.5 should not be held CIMTs because they require only recklessness causing a risk to the safety of persons or property, not an imminent risk of death or very serious bodily injury. Recklessness that might damage property or harm persons generally is not held a CIMT. For example, the Foreign Affairs Manual, which guides issuance of immigrant visas, states that reckless driving is not a crime involving moral turpitude. See 9 FAM 40.21(a) N2.3-2. Recklessly causing bodily injury is not a CIMT. Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996). COV. Supreme Court affirmed that reckless conduct cannot amount to a COV. See discussion of Borden v. United States (2021) at PC 207. | 1880 |
| VC 23103.5 | Reckless driving & use of alcohol or drugs “Wet reckless” | Not AF as COV (plus, less than 1 yr potential sentence). See Advice to 23103. | Not CIMT; see 23103 | Not CS offense because the offense is not divisible as to the substance; see 11377, above. But best practice is plea to alcohol or non-CS, e.g., sleeping or allergy pills. |
AF: Not an AF; see discussion of COV, sentence, and Borden at 23103, above. Discretion. Generally a wet reckless is not treated as harshly as DUI, which is treated as a severe negative factor in discretionary decisions. See PC 23152. It often is a real benefit to get wet reckless rather than a DUI. DACA: This has not been treated as a DUI significant misdemeanor bar to DACA, but D should obtain 1203.4 expungement if possible. See PC 25400. | 1890 |
| VC 23104, 23105 | Reckless driving proximate cause of injury | Not a COV, but as always try to obtain 364 or less. | Assume that 23105 is a CIMT, but 23104 might not be. See Advice. | No other ground |
CIMT: Acting recklessly with wanton disregard of imminent risk to life or serious injury is a CIMT. Because 23104 requires only “bodily injury” while 23105 sets out various more serious injuries, we would argue that 23014 is not a CIMT. Note voluntary intoxication is not a defense against a CIMT finding. AF/COV: Supreme Court held that reckless conduct is not a COV for this purpose, so a conviction should not be an AF even if a year or more is imposed. | 1900 |
| VC 23110 (a), (b) | (a) Throw substance at parked or moving vehicle (b) Throw dangerous items at same with intent to cause great bodily injury | Part (a) is not a COV, and max penalty is 6 months. Assume (b) is a COV. To avoid an AF, get 364 or less on each count. See § N.4 Sentence. | (a) should not be CIMT205Subsection (a) has no requirement of bad intent and can reach minor conduct. It “merely bars the throwing of any substance at a vehicle while it is moving along or is parked on a highway or a street, which could distract the driver, or result in his injury or in an injury to any occupant, or do some mischief to the vehicle itself.” Findley v. Justice Court (1976) 62 Cal. App. 3d 566, 572. (b) is CIMT b/c requires intent to do GBI | (b) is a COV and could be a deportable DV offense if V has domestic relationship. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). |
CIMT: Best plea to (a) is throwing something at a car parked on a street or similar mild conduct, in case IJ (wrongly) looks at record instead of evaluating the offense by the minimum conduct required for guilt. | 1910 |
| VC 23152 (a) | Driving under the influence of alcohol | Not AF (In the future Congress might make a third DUI with 1-yr imposed an AF. If possible, avoid 1 yr on a single DUI count in that situation. See § N.4 Sentence. | Not CIMT, including multiple offenses.206Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001). | Conviction is itself is not a per se inadmissible offense. However: A recent DUI arrest or conviction, or multiple past arrests or convictions, can trigger evaluation for being inadmissible under the health grounds due to alcoholism.207Having a physical or mental disorder (including alcoholism) that poses a current risk to self or others is a basis for inadmissibility under the health grounds. 8 USC § 1182(a)(1)(A)(iii). People with multiple DUI (and other) priors might have become inadmissible by amassing a lifetime of 5 years aggregate sentence imposed (including suspended sentences) for two or more convictions of any type of offense.2088 USC § 1182(a)(2), INA § 212(a)(2). |
See 23103.5 as alternative plea. See Practice Advisory on DUI immigration consequences.209See ILRC, Immigration Consequences of Driving under the Influence (August 2017) at https://www.ilrc.org/immigration-consequences-driving-under-influence. Pretrial Diversion. Two California courts of appeals have found that DUI is not eligible for PC 1001.95 diversion.210See Grassi v. Superior Court (2021) 73 Cal.App.5th 283; Tan v. Superior Ct. of San Mateo Cty (2022) 76 Cal. App. 5th 130 (review filed). Reckless, wet reckless. While 23103.5 is not a good immigration plea, it is far better than a DUI for purposes of discretion in all cases, and often is the identified case goal. It is critical for DACA. See negotiating resources here.211DACA, DUI’s, and Wet Reckless. In many crim/imm cases, the immigrant does not need to seek a less serious offense; in fact, they may even “plead up” to an offense that carries more severe criminal consequences but is immigration-neutral. But this is not the case with DUI’s, and especially not with DACA. A DUI is an absolute bar to DACA, but VC 23103.5 is not. Absent some other serious negative factor, applicants with a 23103.5 conviction are routinely granted. In other kinds of cases, while it is best not to have a 23103.5, it often is treated with far more leniency than a DUI and can make the difference between winning and losing. In all cases, of course, a 23103 is even better. DACA. A DUI is a bar to DACA (the relief for Dreamers), but PC 1203.4 may work to eliminate it. VC 23103.5 is not a bar to DACA. See resources at endnote above. Good Moral Character. The BIA held that two DUI convictions within the period for which GMC must be shown create a rebuttable presumption against the person having GMC. GMC is necessary for naturalization, non-LPR cancellation, VAWA, and some other relief.212See Matter of Castillo-Perez, 27 I&N Dec. 664 (AG 2019) and see forthcoming practice advisory at www.ilrc.org/crimes. For more on the good moral character requirement, see section 17.26 of ILRC, N.17 Relief Toolkit (2018) at www.ilrc.org/chart. Discretion in general: While not a specific removal ground, a DUI conviction is a common basis for denying release on bond and discretionary applications for relief. Release on bond from ICE detention. Any DUI — but especially more than one DUI, or a relatively recent DUI – is a serious factor against release on bond.213In the case of a long-time permanent resident charged with a felony DUI, with two prior DUI convictions from ten years earlier at least one of which included an accident, the BIA held that the combination of events meant that the person was not eligible for release on any bond because he was a danger to the community. Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018). However, a federal district court held that an immigration judge could not deny bond based on a finding that the person was a danger to the community, when the finding was based solely on two misdemeanor DUI convictions from a few years earlier, when the person did not serve custody time and did complete probation conditions. The finding that these DUI convictions demonstrated that the person was a danger to the community was “clearly erroneous.” Ramos v. Sessions, 293 F.Supp.3d 1021 (N.D. Cal. 2018). Wet reckless offers no guarantee but is better. Asylum/Refugees. A DUI with injury could be held a “particularly serious crime” affecting asylum applicants, asylees and refugees. See 23153. Revokes visas; travel warning. U.S. consulates likely will revoke a non-immigrant visa (e.g., student visa) in response to DUI conviction or arrest. If this happens, the person should not return to the home country or travel outside the U.S. without first consulting with an immigration attorney. (The consulate does not have the ability to revoke the person’s permitted period of stay that was granted upon admission, but that can change if the person leaves the U.S.) SB 54 and ICE Visits to the Home. A misd DUI comes under SB 54 protections, which depending on the county may decrease the chance that ICE will arrest the person from jail. ICE may go to D’s home, if it decides to prioritize DUI’s. (At this writing ICE is not, but this has changed frequently.) Give D “red cards” and refer to a nonprofit for training.214SB 54 and the California Values Act provides some limits on how local law enforcement can interact with ICE, unless the immigrant defendant was convicted of certain offenses. A misdemeanor (as opposed to felony) DUI does not destroy SB 54 protection. For more on SB 54, see ILRC, § N.4. SB 54 and the California Values Act (2018) at www.ilrc.org/chart. | 1920 |
| VC 23152 (f), (g) | Driving under the influence of a “drug,” or of a drug and alcohol | See 23152(a) | See 23152(a) | Should never be a CS offense under the categorical approach,215A conviction comes within the controlled substance ground of inadmissibility or deportability only if, under the categorical approach, it involves a federally identified CS. See Mellouli v. Lynch, 135 S. Ct. 1980, and discussion at H&S C § 11377. Sections 23152(e) does not meet that test. It is overbroad because the minimum conduct may involve a drug that is not a CS (e.g., over-the-counter sleeping or allergy pills). It is indivisible because the single term “drugs” does not set out statutory alternatives, at least one of which is limited to controlled substances. See, e.g., Descamps v. United States, 570 U.S. 254 (2013) (the single term “entry” is not divisible between permitted and non-permitted entries). Because the statute is overbroad and indivisible, no conviction can be a controlled substance offense for any immigration purpose. Authorities may not consult the record of conviction to determine what “drug” was involved. See ILRC, How to Use the Categorical Approach Now (2021) for more information. However, because authorities do not always correctly apply the categorical approach, the best practice is to avoid naming a federally defined CS in the ROC. Also, warn the client not to talk with any immigration authorities about the event or any controlled substance that was involved, without first getting immigration help. The government might try to assert that even though the person was not convicted of a CS offense, the person is inadmissible for “admitting” a CS offense. but best practice is to plead to alcohol or to a specific non-CS drug, e.g., allergy or sleeping medication. See Advice. | VC 23152(f), (g) Generally, see 23152(a). CS. This is not a CS offense because “drug” is not a divisible term, and it includes substances that are not CS. However, it could prompt questioning by imm officials that would lead to the person formally admitting to using a CS, which can be a ground of inadmissibility, unless the person pleads to a specific non-CS. | 1930 |
| VC 23153 | DUI causing bodily injury | Not AF See VC 23152(a) | Not CIMT See VC 23152(a) | See VC 23152(a) |
See VC 23152(a) Refugees/asylees. DUI with injury may be treated as a “particularly serious crime,” which is bad for refugees, asylees, and applicants for asylum.216See Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) (depending upon individual circumstances, the BIA can properly find that a conviction of Veh Code § 23153(b) is a particularly serious crime). (DUI without injury should not be, but no guarantee.) See also Advice to 23152 re proposed asylum regs. | 1940 |
| VC 23572 | Enhancement for DUI: child under 14 in the car | Not an AF; see VC 23152 | Unknown if it is a CIMT | Assume this is a deportable crime of child abuse |
See VC 23152. Consider 273a(b) (but not 273a(a)) instead. Or if needed, plead to both 273a(b) and 23152(a) or wet reckless. | 1950 |
| W & I 10980(c) | Welfare fraud | AF if loss to gov’t exceeds $10,000. See § N.11 Burglary, Theft and Fraud and see Advice. | Yes CIMT. Consider PC 529(a)(3), 530.5. | No other removal ground. |
AF: If loss > $10k, try hard to plead to offense that does not involve deceit (e.g., PC 484) along with this offense and put loss on the second offense. Or plead to one count (e.g., one month) with loss less than $10k, and make separate civil agreement to repay more. However, that might not work for 10980.217Cal. Welf. & Inst. Code § 10980(c) provides that in setting restitution to the state agency, the agency’s “loss” should be calculated as the amount the government overpaid. This factor makes welfare fraud potentially riskier than even the regular fraud/deceit case. See discussion in Ferreira v. Ashcroft, 390 F.3d 1091, 1098 (9th Cir. 2004), although note that there the defendant stated in the guilty plea that restitution exceeded $10,000. If it is possible to plead to theft, or to perjury, forgery, etc. without a one-year sentence, counsel should do so. If a plea must be taken to welfare fraud, counsel should write a written plea agreement to one count of fraud where the government lost less than $10,000 (or more than one count where the aggregate is less than $10,000). At sentencing, accept restitution of more than $10,000 with a Harvey waiver and, for the immigration judge’s benefit, a statement that the rest of the funds are being repaid based on dropped charges or uncharged conduct. See Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). Note that both Chang and Ferreira, supra, were published before Nijhawan v. Holder, 557 U.S. 29, 42 (2009), which further defined the aggravated felony. For further discussion see Pen C § 470, above. This offense is not theft and therefore OK to take 1 yr sentence, unless commission requires perjury. | 1960 |
| B&P C 4141 (and former 4140) | Sell syringe without a license (formerly possess) | No | No, because they are regulatory offenses | Should not be a conviction of a CS offense but see other defense options at H&S C 11377 |
Because these offenses have no element pertaining to a controlled substance (CS), they should have no imm consequences. B&P C 4140 is a good substitute for possession of drug paraphernalia, H&S C 11364. B&P C 4141 is a good substitute for sale of drug paraphernalia, which is an aggravated felony. | 20 |
| Current H&S C 11357(a) (2) This analyzes the current statute, amended by Prop 64. See below for pre-Prop 64 version of 11357. | Possess no more than 28.5 grams of cannabis or 8 grams of concentrated cannabis, while age 18-20 (infraction). **** | Not an AF, unless a prior possession is plead or proved. | Not a CIMT. | See Advice for argument that this is not a CS for immigration purposes. However, defenders must conservatively assume it is a CS, at this time. Immigration law provides less punishment for one or more convictions arising from a first drug incident involving possession for personal use of 30 grams or less of marijuana (including concentrated cannabis). This also includes possession of marijuana paraphernalia and, according to the Ninth Circuit but not the BIA, use of marijuana.218A noncitizen with one or more convictions that arose from a single incident “involving possession for one’s own use of 30 grams or less of marijuana” (according to the federal definition of that substance) is automatically not deportable under the controlled substance ground. 8 USC § 1227(a)(2)(B). The person is inadmissible under the controlled substance ground at 8 USC § 1182(a)(2)(A), but some LPRs and persons applying to become an LPR can apply for a discretionary “212(h)” waiver of inadmissibility. See 8 USC § 1182(h). In addition, it is not an automatic bar to establishing good moral character. 8 USC § 1101(f)(3). Deportable. If no drug priors, this is not a deportable CS conviction due to a statutory exception for the 30-gram category. But any drug prior will destroy the exception and make this a deportable offense. Inadmissible. Yes, inadmissible CS conviction. But if no drug priors, an LPR or LPR applicant might be eligible to apply for discretionary waiver, 8 USC 1182(h). Also, conviction is not an automatic bar to showing good moral character (e.g., for naturalization to USC). | Current H&S C 11357(a) (2) See also ILRC, Immigrants and Marijuana (2021). Infractions: Although the BIA has held that some states’ infractions do not rise to the level of “convictions” for immigration purposes, and there are good arguments that California’s should be treated like that, in practice DHS is treating California infractions as convictions. A cannabis infraction is potentially a dangerous conviction of a controlled substance offense! See also 11358, a potential “aggravated felony infraction.” Fight hard to avoid any CS conviction, even 28.5 grams of marijuana or less. Try instead for PC 32, other non-drug offense, or PC 1000 pre-trial diversion (for client who is likely to succeed). See Advice to 11377. Immigration advocates can argue that an infraction is not a conviction. See infraction advisory at www.ilrc.org/crimes. At the same time, seek post-conviction relief under PC 14743.7 or other vehicles. The person likely had no defender. Argument that California cannabis is not a federally defined controlled substance. Immigration advocates can argue that due to Prop 64 changes, California cannabis is overbroad and indivisible compared to the federal definition, and therefore California cannabis convictions on or after Nov. 9, 2016 (the effective date of Prop 64) are not controlled substance convictions for immigration purposes. See endnote for further discussion and citations. 219This argument was developed by the students of the Boston College Law School Ninth Circuit Appellate Program, and Associate Professor Kari Hong, as part of the case Prado v. Barr, 923 F.3d 1203 (9th Cir. 2019). In Prado the court denied relief, but did not reach all of the issues. Many thanks to them for sharing the argument. See also ILRC, Template Brief on Why California Cannabis Convictions on or after November 9, 2016 are not Grounds for Removal (2024). While pursuing this argument, at the same time investigate possible post-conviction relief. The Supreme Court recently held that a state drug offense is a federally defined substance “only if the State’s definition of the drug in question ‘match[s]’ the definition under federal law.” Brown v. U.S., 144 S. Ct. 1195, 1201, (2024) (a prior state marijuana conviction is a sentence enhancement as a federal controlled substance offense under ACCA only if the federal and state definitions of marijuana matched at the time of the prior marijuana conviction). Defenders should know that this defense exists, but because there is no precedent specifically on California cannabis, they must not rely on cannabis being a ‘safe’ immigration disposition. If it is necessary to plead to a cannabis offense, try to plead specifically to conduct limited to “mature stalks” at the plea colloquy, and provide some written proof of this. While this is not legally necessary to support the possible defense, it may simplify things in immigration court. Post-conviction relief. PC 1203.43 should eliminate prior DEJ pleas for imm purposes, but because ICE is fighting against these it may be better to obtain 1473.7. For a single minor drug conviction from on or before 7/14/11, see Advice at 11377 regarding the Lujan benefit. Consider other post-conviction relief, including PC 1473.7 to vacate. See Advice to 11377. Prop 64 provides sealing post-conviction relief at H&S C 11361.8(e)-(h),but we do not have precedent that DHS must accept it and do not recommend it. See more resources at https://www.ilrc.org/immigrant-post-conviction-relief Concentrated cannabis. See Advice at 11357(b)(2). Admitting conduct relating to marijuana, working in the industry. Warn immigrants not to discuss marijuana with any imm officials without first seeing an imm lawyer, and not to work in the mj industry. Although mj has been legalized in many states, it remains a federal CS offense to possess, grow, sell, or share it. Noncitizens who admit possession or industry employment to an imm official might be found inadmissible, even without a conviction and even for conduct permitted under California law. USCIS recently reaffirmed it would impose these penalties. See online legal advisory and community flyers in multiple languages.220 See community flyers in English, Spanish, and Chinese warning immigrants about the dangers of even “lawful” marijuana conduct, and see legal discussion of risks and defenses at ILRC, Practice Advisory: Immigration Risks of Legalized Marijuana (2021), at https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana. | 120 |
| Current H&S C 11357(b) (2) This is the current statute. See below for pre-Prop 64 version of 11357 | Possess more than 28.5 grams cannabis or 8 grams concentrated cannabis | Not an AF unless a prior possession is plead or proved. | Not a CIMT | See Advice. Yes, deportable, plus inadmissible with no 212(h) waiver, CS offense—unless D can qualify for the 30 grams mj category. See description of the category and its advantages at (a)(2), above. The BIA held that the 30 grams amount is a factual issue.221The BIA held and the Ninth Circuit agreed that the amount of marijuana is not determined using the categorical approach, which focuses on the minimum conduct required for guilt; it is determined using the fact-based “circumstance specific” analysis where any “reliable and probative” evidence may be considered. Matter of Davy, 26 I&N Dec. 37 (BIA 2012); Matter of Hernandez-Rodriguez, 26 I&N Dec. 408 (BIA 2014); Bogle v. Garland, 21 F.4th 637 (9th Cir. 2021). For further discussion, see Zota, Matter of Davy and the Categorical Approach (NIPNLG January 15, 2013) at https://nationalimmigrationproject.org/PDFs/practitioners/practice_advisories/crim/2013_15Jan_davey-categor-apprch.pdf. Burden of proof. ICE must prove conviction was for more than 30 grams cannabis, to prove an LPR is deportable. ICE can use evidence from outside the ROC to show the amount. To apply for the 212(h) waiver of inadmissibility, under current law D has burden to produce the same kind of evidence to show 30 grams or less. | H&S C 11357(b) (2) Please read Advice for 11357(a), including argument that California cannabis is not a CS for immigration purposes. Concentrated cannabis.222The removal grounds use the term “marijuana,” which is defined at 21 USC § 802(16) to include all parts of the cannabis plant, including concentrated cannabis (hashish). Since the passage of Proposition 64 in November 2016, California statutes use the term “cannabis.” See H&S C § 11018 and B&P C § 26001. Imm advocates can argue that this limit does not apply to the exception to the deportation ground. Under the language of the statute, 30 gm of “marihuana,” which includes concentrated cannabis, is not a deportable offense. But best practice is to plead to six grams or less of hashish, or else to marijuana, if possible. Specific plea to 30 grams or less. The BIA held the 30 grams or less issue is “circumstance specific” and can be proved by facts outside the record of conviction. There is strong authority that a plea bargain that specifically names the amount as 30 grams or less defines the conviction and trumps other evidence,223See, e.g., Chang v. INS, 307 F.3d 1185 (9th Cir. 2002) (plea to loss to victim under $10,000 is controlling where $10k is subject to the circumstance specific test) and see Nijhawan v. Holder, 557 U.S. 29, 34-36 (2009), finding that under the circumstance specific approach the facts must be “tethered” to the count of conviction. See discussion in Advisory, Matter of Davy and the Categorical Approach at www.nipnlg.org and see Nijhawan practice advisories at www.ilrc.org/crimes and www.nipnlg.org. although ICE might try to contest this. | 130 |
| Current H&S C 11357(c) Current statute. See below for pre-Prop 64 version of 11357 | Possess 28.5 grams cannabis or 8 grams concentrated cannabis on school grounds, if age 18 years or older | Not an AF, unless a prior possession is plead or proved | Should not be a CIMT | Assume this is a deportable and inadmissible CS offense with no 212(h) waiver. See Advice. |
Section 11357(c) does not qualify for the 30 grams benefits discussed at 11357(a). Also see Advice at current 11357(a)(2), above, regarding the argument that mj as defined under California law is not a controlled substance for immigration purposes. The BIA held that added elements such as a drug-free zone or jail prevent an offense from qualifying for the 30 gm marijuana benefits discussed in 11357(a).224See Matter of Moncado, 24 I&N Dec. 62, 67 (BIA 2007) (small amount of marijuana in a prison); Matter of Martinez-Zapata, 24 I&N Dec. 424, 430 (BIA 2007) (drug-free zone). To get those benefits, try to plead to 11357(a) or (b). | 140 |
| H&S C 11377 H&S C 11350(a) uses the same analysis | Possess any of several controlled substances (CS) that are defined by California statute | Possession is not an AF unless: (a) a prior possession offense was pled or proved for recidivist enhancement, or (b) it is possession of flunitrazepam | Possession is not a CIMT (but sale or distribution is) | Conviction is a deportable and inadmissible CS offense, unless a non-federal substance defense applies. Formally admitting that one committed a CS offense, even without a conviction, makes one inadmissible (but not deportable). See discussion at See Advice regarding alternative dispositions, such as a plea to a non-drug offense; PC § 1000 diversion (if the person is likely to successfully complete it; see Part B.2, below); and an alternative plea such as PC §§ 32 (with a sentence of 364 days or less) or 372.5, although those alternatives are safer for LPRs than for undocumented people. Post-Conviction Relief: Minor drug offenses may be eligible for special PCR, including if the person completed the former DEJ (PC § 1000, 1979-2017) or current Prop 36, and Lujan-Armendariz relief for certain minor convictions from on or before July 14, 2011. See below | H&S C 11377. H&S C 11350(a) uses the same analysis General Advice for all Controlled Substance Offenses. Also, see endnote225See generally ILRC, § N.8 Controlled Substance at www.ilrc.org/chart (2019). For California post-conviction relief generally, see ILRC Practice Advisory, Overview of California Post-Conviction Relief (July 2022) and see the ILRC manual, California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes (Jan. 2023), https://store.ilrc.org/publications/california-post-conviction-relief-immigrants-how-use-criminal-courts-erase-immigration. 1. Try to avoid a CS conviction—especially a first one! See options. Depending on the individual, a single possession conviction involving a federally-defined substance can be fatal to current or hoped-for immigration status. The most minor conviction can destroy lives and families, including permanently depriving children of a parent. A drug trafficking conviction is fatal to almost all immigrants who cannot prove a likelihood that they will be tortured in the home country. The best option is usually to bargain to drop the drug charge/s and instead plead to an immigration-neutral non-drug offense. Argue equities and try to plead to e.g., 32, 370/372.5 459, 136.1(b), trespass, 459, DUI, B&P C 4140, etc. Individual analysis is required, but often a plea to a property or even a violent offense is better than a CS offense. There are good options after that, but their effectiveness differs depending on the individual defendant’s immigration needs, so be sure to discuss this with an expert. For example, an asylum applicant might do better with an 11350 than with a more serious but still immigration-neutral non-drug offense, while an LPR or person seeking other status could be the opposite. Common defense options are set out below, roughly in order of preference. Each is discussed in more detail in this section.
2. Take pretrial diversion such as PC 1000 (1/1/18) if D can complete it. Because it has no guilty plea, this is not a conviction for immigration purposes. But if D is unlikely to complete the program, fight hard for a non-drug plea now rather than taking PC 1000, because in accepting PC 1000 the person must give up the right to jury trial if they should fail diversion and have to face the charges. PC 1000.1(a)(3). If D will be put in ICE custody, D will not be able to complete PC 1000—but at least will not have a guilty plea. See link to advisory in endnote above. Other forms of pretrial diversion, such as mental health diversion (PC 1001.36) and the new misdemeanor pretrial diversion (PC 1001.95), effective 1/1/2021, to the extent there is no guilty plea required. 3. Plead to a specific non-federal controlled substance, e.g., chorionic gonadotropin. To be a deportable or inadmissible CS offense or CS aggravated felony, a state conviction must involve a substance listed in federal drug schedules. California laws include a few that are not listed there. For example, 11377-79 includes chorionic gonadotropin, which is not a federal substance, and khat, which probably is not.226Advocates can investigate this. The khat plant itself is not listed in federal drug schedules, but certain chemicals that are present in some but not all khat plants, and that come into being upon ingestion, are listed in federal schedules. Whether possession of khat itself is possession of a federal substance has been handled differently in various criminal and immigration cases. See, e.g., Argaw v. Ashcroft, 395 F.3d 521, 526 (4th Cir. 2005). The Ninth Circuit has not ruled on this issue. If the record specifically identifies one of these (e.g., “I sold chorionic gonadotropin”), it is not a conviction of a CS offense or drug trafficking AF for any immigration purpose, whether deportability or eligibility for relief. The defense has effect nationally. The problem is that it can be a difficult plea to negotiate—although California defenders have been able to plead guilty to 11377-79 offenses and state “chorionic gonadotropin” on the record, which is all that is required. Note that even with this defense, the person still might face some other penalties; see Part c, below. In some cases it might even make sense to plead specifically to meth; see discussion below. There is a related but distinct defense: the “unspecified substance” defense, where the record is sanitized to not reveal what substance was involved (e.g., “I sold a controlled substance”). This defense was weakened considerably in 2021. See Part 6, below. Here are key points about the specific CS defense. a. Chorionic gonadotropin, H&S C 11377-79, is the safest non-federal CS in California. That substance is not on federal schedules as of this writing. Until the time it is placed on federal schedules, a conviction is not an immigration CS offense or CS AF. b. In some cases the same substance is listed on both the federal and California schedules, but California defines the substance more broadly than federal law does. That may mean a win. Both California and federal statutes set out specific definitions of several controlled substances (CS), providing detailed descriptions of their chemical or botanical make-up. Under the categorical approach, if a California statute defines a particular CS more broadly than the federal statute does, then a California conviction involving the CS is not a federally-defined CS conviction. That means it is not a deportable or inadmissible CS offense or drug trafficking aggravated felony. This also applies in federal criminal court. See, e.g., Brown v. U.S., 144 S. Ct. 1195, 1201, (2024) (“A state drug offense counts as an ACCA predicate only if the State’s definition of the drug in question ‘matche[s]’ the definition under federal law.”). This is a promising line of defense for immigration advocates. However, defenders should not rely on this defense to plead to California CS offenses until there is precedent on the particular California substance. Consider the following: Arguably California cannabis under Prop 64 is not a federally defined CS. Defenders should conservatively assume that cannabis under California law, including post-Prop 64, is a federally defined CS. But advocates in removal proceedings can assert that Prop 64 changed the California definition of cannabis, so that a conviction from on or after November 9, 2016 (the effective date of Prop 64) is overbroad and indivisible compared to the federal marijuana definition, and thus is not a controlled substance offense for immigration purposes. See discussion at H&S C 11357(a)(2) (current), above and see ILRC,Template Brief on Why California Cannabis Convictions are not Grounds for Removal. (2024) and discussion at ILRC, Immigrants and Marijuana (May 2021). Recent federal district court decisions find that California methamphetamine is not a federally defined CS. See U.S. v. Morales-Rodriguez, — F.Supp.3d — (S.D. Cal. August 13, 2024), 2024 WL 3798385 (dismissing charge of illegal re-entry after removal on the grounds that the prior removal was unlawful, partly because D’s prior California meth conviction did not involve a federally-defined CS); U.S. v. Verdugo, 682 F.Supp.3d 869, 872–73 (S.D. Cal. 2023). The decisions are based on the fact that California defines meth “analogs” more broadly than federal law does, so that under the categorical approach, the California offenses criminalizing meth and its analogs are overbroad and indivisible. (Note that this is different from a previous argument that California meth is not a federal CS, based on meth “geometric isomers.” While that argument ultimately lost, this argument appears stronger. See discussion of the law and chemistry in Verdugo.) Removal defense advocates should assert this defense now. For criminal defense counsel, if the client has a few possible defense options – for example, considering PC 372.5 versus a meth plea — it may not be clear which is the safest in every case. On the one hand, PC 372.5 carries risks for non-LPRs, and on the other hand there is not yet a Ninth Circuit decision on meth. Get expert help on individual cases. Meth also is a potential plea in charges of 11364, 11370.1, and 11550. Arguably other California controlled substances are not federally-defined substances, because California CS “analogs” are defined more broadly than federal ones. A defense might apply to other California controlled substances, if both the substance and its analogs (similar substances) are criminalized. In the decisions on meth discussed above, the courts recognized “that California law and federal law both criminalize possession of controlled substances and treat controlled substance analogs equally to controlled substances. See Cal. HS&C §§ 11378, 11401(a); 8 U.S.C. § 1101(a)(43)(B); 21 U.S.C. § 812. However, there are noticeable distinctions in the way that California law and federal law define controlled substance analogs. Compare Cal. H&S § 11401(b) with 21 U.S.C. § 802(43)(a).” U.S. v. Morales-Rodriguez, supra at *8. Arguably California heroin is not a federally defined CS. Because the California statute defines heroin more broadly than the federal statute does, there is a strong argument that California heroin is not a federal CS under Ninth Circuit precedent. 227Argument that heroin is not a federal controlled substance. The argument begins with the Ninth Circuit’s prior treatment of methamphetamine in the Lorenzo and Rodriguez-Gamboa cases, based on geometric isomers. See below for citations to these decisions. In 2018, in the Lorenzo cases the Ninth Circuit held that California meth (H&S 11377-79) is not a federal CS because the chemical definition of meth set out in California drug schedules includes geometric isomers, while the federal schedule definition of meth does not. The Ninth Circuit found that this made California meth overbroad and indivisible compared to federal “generic” meth, so that no California meth conviction was a federally-defined CS for immigration purposes. But the Ninth Circuit later determined, based on unrebutted expert testimony, that there had been a mistake and “that there is no such thing as a geometric isomer of methamphetamine.” Therefore the court held that meth is a federal controlled substance. United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1150 (9th Cir. 2020). The Ninth Circuit did not abandon its basic reasoning or application of the categorical approach, however; it just found that the particular claim was factually incorrect. c. Other immigration penalties can occur even with this defense. This defense prevents a conviction of an offense relating to a federal CS. But other immigration consequences do not require a conviction of a CS, and they are a risk. These include:
4. Might D be a victim of human trafficking or domestic violence? Does evidence suggest that D may be a victim of human trafficking or domestic violence and is committing the drug offense under coercion? Coercion can mean under direct orders (e.g., to produce or sell drugs) or coercion arising from the victimization, without orders (taking drugs in response to despair). This could be a defense to a drug charge; a vacatur for a prior conviction; and/or a possible path to legal status. For example, San Francisco PDs have won at trial on behalf of Hondurans charged with drug sale but who were trafficked and coerced, which is a common scenario. 229See, e.g., Hope for Justice, The Nexus Between Drug Trafficking and Human Trafficking (June 10, 2024), https://hopeforjustice.org/news/the-nexus-between-drug-trafficking-and-human-trafficking/. See discussion of options at ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022) and at Advice to H&S C 11358, above. 5. Plead to new PC 372.5 or (with less than a year imposed) PC 32. See further discussion at Advice to PC 372.5. This should not be a conviction of a CS offense, an AF, or CIMT. However, ICE may try to pressure the person to admit the underlying conduct, which could trigger inadmissibility and ineligibility for relief (but not deportability). What it does. PC 372.5 became an option in 2023. It operates similarly to a “wet reckless” but for drug charges, giving D the option to accept the criminal penalties for the charge but avoid some immigration or other civil (e.g., housing, employment) penalties. A defendant charged with drug offense/s can ask for charge/s to be dismissed and to plead instead to being a public nuisance (PC 370) at the same offense level. Under PC 372.5(a)-(c), for this purpose 370 is punishable as an infraction, a misdo/wobblette, or a 16-2-3 wobbler. It provides that a condition of the plea was that “drug” charges (not limited to CS) were dismissed. Similar to wet reckless, the DA cannot affirmatively charge 372.5, but if defense requests it the DA will decide whether to agree. D is convicted of being a public nuisance, PC 370. Under the categorical approach, 370 is not a CS offense, CIMT, or other removable conviction. But the plea protects some immigrants more than others; see below. Compare to PC 32. Felony or misd PC 32 has long been used as an informal substitute immigration plea for a drug charge, to avoid a CS conviction. PC 372.5 has similar effect, except (1) 372.5 can take a year or more without being an AF, while PC 32 cannot and (2) for better and worse, PC 372.5 directly refers to a dismissed drug charge. The upside is that some DA’s have refused to take a PC 32 plea on the grounds it is an inappropriate legal fiction, whereas 372.5 is a sanctioned alternative to a drug charge. The downside is that because immigration authorities may focus on pressuring the person to admit the underlying drug charge that PC 372.5 states was dismissed. Which clients this best helps. It is best for LPRs trying to avoid becoming deportable, because a CS conviction is required for deportability and this is not one. It can help LPRs in other contexts (including, although this is not recommended, travel outside the U.S.) where they do not have the burden to prove they are admissible. But an LPR who applies for adjustment as a defense to removal would be in a similar state as undocumented clients, as described below. See endnote230When a plea to PC 372.5 is not necessarily dangerous to an LPR. No LPR will be found deportable for a plea to PC § 372.6, because deportability requires a conviction of a federal controlled substance. This is less good for applicants for relief, which includes all undocumented people, deportable LPRs, etc. They may need to prove that they are admissible or merit a positive discretionary ruling. Immigration authorities may pressure them to admit they committed the original drug charge, which might make them inadmissible or be a negative discretionary factor. They might threaten to deny the application if the persons refuses to speak. See further discussion at Advice to PC 372.5. Immigration advocates may be able to work around this. 6. For LPRs: Keep the record clear of any specific controlled substance. This long-time defense was significantly weakened in 2021 and a plea to PC 372.5 (or, with a year or less, PC 32) is much safer. But if defenses 1-5, above, are not available, this may help LPRs avoid deportability charge and is worth seeking. It will not help immigrants who must apply for relief. Defense: Defender bargains to remove any mention of a specific federal CS, e.g., “morphine” from D’s record of conviction and substitute “a controlled substance.” Because H&S C 11350-52, 11377-79 contain some substances not in the federal schedules (see #3, above), the vague record fails to prove that the offense involved a federal CS. In a plea context, the documents that must be sanitized are referred to as the “record of conviction” or Shepard documents; they are the charge pled to; the plea colloquy transcript and/or written plea agreement; the judgment; and any factual basis for the plea agreed to by the defendant. After some back and forth, the Ninth Circuit held that the defense protects all immigrants, including those applying for relief, in Marinelarena. Effect of Pereida. In Pereida v. Wilkinson, 141 S.Ct. 754 (March 4, 2021), the Supreme court weakened the defense in two ways. First, it rejected Marinelarena and held that the inconclusive record defense does not help an immigrant applying for relief, e.g., all undocumented people, deportable LPRs, etc. In the drug context, those people must prove that the substance was chorionic gonadotropin. But the defense does help an LPR who is contesting deportability. ICE must prove that the offense was a federal CS. Second, in dicta the Court stated that Shepard likely never applied to immigration proceedings so that evidence from outside the record of conviction can be used to prove the specific substance. The Ninth Circuit seems to be adopting this. Going forward, this means that sanitizing the record of conviction documents may help an LPR to avoid deportability – but this is not guaranteed. LPRs who created a vague record of conviction before March 4, 2021 should have a good argument that this dicta cannot be applied retroactively. For further discussion see ILRC, Pereida v. Wilkinson and California offenses (April 2021). For how to create an inconclusive record of conviction, see endnote.231How to create an “inconclusive” record of conviction. NOTE: As discussed in the text, under Pereida an inconclusive record will only help an LPR to avoid a charge of deportability. It will not help any applicant for relief. Plus, Pereida included dicta that might weaken this defense, because it encourages courts to withdraw from precedent and permit ICE to use evidence from outside the record of conviction to prove the specific substance. But if this is the best strategy available for an LPR, here are instructions for how to create an inconclusive record. 7. Eliminate a prior CS conviction Vacatur per PC 1473.7, 1016.5, habeas corpus, etc. California has several types of post-conviction relief that can help immigrants; see especially PC 1473.7. See advisories at the endnote at the start of this section, in particular ILRC, Overview of California Post-Conviction Relief for Immigrants (July 2022), and see the new ILRC book, California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes (January 2023) and materials at www.ilrc.org/immigrant-post-conviction-relief. Other PCR is specific to minor drug offenses: Former DEJ. People who pled guilty under former PC 1000, Deferred Entry of Judgment (1996-2917) and who ever obtain dismissal under former 1000.3 can submit a free, simple application under PC 1203.43 to eliminate this “conviction” for immigration purposes. But because of ICE pushback in removal proceedings on its effectiveness, one should either (a) make it clear to the criminal court judge or at least to immigration authorities that the person believed that the DEJ promise of “no conviction” included for immigration purposes, and/or see PC 1473.2(e)(2), next. Former DEJ or Prop 36. A PD might be able obtain a vacatur under PC 1473.7(e)(2), easily and without conflict of interest. Section (e)(2) creates a presumption of legal invalidity of the plea if there was a representation that completion of the diversion program would mean that there was no conviction or arrest record, which in fact is stated in Prop 36 and the former DEJ. To help in immigration proceedings, it would be best if the defendant files a declaration stating (honestly) that they understood this to include no conviction for immigration purposes, and relied on that in deciding to plead. See PCR advisory in endnote above. Conviction on or before 7/14/11. For a qualifying D, first conviction for possession of a CS or of paraphernalia (but not use), or for giving away a small amount of marijuana, from on or before 7/14/11 is eliminated for immigration purposes by rehabilitative statutes like 1203.4, withdrawal per Prop 36, former 1000.3, etc. D must not have violated probation or had a prior pretrial diversion (but these limitations might not apply if D was under age 21 at time of plea.) See H&S C 11360 and see Lujan advisory link at endnote above. The Ninth Circuit found that a prior removal of a person who would have qualified for Lujan treatment was a gross miscarriage of justice.232See Vega-Anguiano v. Barr, 942 F.3d 945, 946 (9th Cir. 2019) (preventing government from reinstating the 1998 removal order). | 231 |
| H&S C 13001 | Negligently risking fire | Not AF | Not CIMT because negligence |
Good alternative to arson, if possible to get. | 270 | |
| PC 273a(a) | Child endangerment involving conduct likely to cause GBI or death (Wobbler) | No conviction of 273a(a) is a COV, because the minimum conduct is negligence and the statute is indivisible.233The Ninth Circuit held that the minimum conduct to commit felony § 273a(a) is not a COV. Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016) (“Although section 273a(a) requires a mens rea of ‘willful[ness]’ for the three prongs of the statute that criminalize indirect infliction of harm or passive conduct, the California Supreme Court has interpreted ‘willful[ness]’ in this context to require proof only of criminal negligence.”). The BIA also has found that criminally negligent child abuse is not a crime of violence under 18 USC § 16(a), even where it results in the child’s death, because it does not involve intentional conduct. See, e.g., Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999) (en banc) (negligence resulted in death by drowning of baby). Arguably attempt to commit 273a(a) is not a COV. There is intent, but physical force is not required. Still, try to get 364 days or less. | No conviction of 273a(a) or (b) should be held a CIMT because the minimum conduct is negligence and the statute is indivisible.234Moral turpitude requires reprehensible conduct with a minimum of reckless intent, or moral depravity. Negligent conduct never is a CIMT. Do not plead to attempt to commit 273a(a) or (b), because it involves intent rather than negligence and is likely a CIMT. | Defenders must assume that this is a deportable crime of child abuse – but check back for updates because the law may change. |
At this time, defenders must assume 273a(a) is a crime of child abuse. Emphasize [KB1] to prosecution that even misdemeanor 273a(a) with no custody imposed, can make the parent deportable and cause permanent family separation — whereas a misdemeanor 273a(b) does not have this effect.235Under current law, a conviction for 273a(a) will cause an LPR, refugee, and others to become deportable for conviction of a crime of child abuse under 8 USC § 1227(a)(2)(E)(i). The person can be detained and held hundreds of miles away, and deported. A discretionary waiver of the deportation may or may not be available, depending on individual circumstances. The conviction will bar an undocumented parent from applying for non-LPR cancellation to stay to care for a USC or LPR child, even if it is clear that the parent’s deportation will cause the child to suffer “exceptional and extremely unusual hardship.” See 8 USC § 1229b(b)(1) and see ILRC, Relief Toolkit, “Cancellation for Non-Permanent Residents” at www.ilrc.org/crimes-summaries. Alternate pleas include 273a(b), and if needed, coupled with an immigration-neutral, age-neutral felony or misdemeanor, e.g., 236/237, 272, 459 1st or 2nd, 594, or, with less than a year imposed, PC 32, 136.1(b)(1). If necessary take 23152 plus 273a(b). Note that PC 1001.95 pretrial diversion is not a conviction for immigration purposes. If pleading to an age-neutral offense, best practice is to keep V’s minor age out of the record.236The BIA and courts hold that the categorical approach applies to determining whether an offense is a deportable “crime of child abuse.” Under that test, an age-neutral offense can’t possibly be divisible because the statute does not set out alternative elements, one of which requires proof of minor age. Because the statute is overbroad and indivisible, it is not a crime of child abuse for any immigration purpose, regardless of information in the ROC. See discussion at PC 243(a), above, and ILRC, Case Update: Domestic Violence Deportation Ground (2022) at www.ilrc.org/crimes-summaries. Immigration advocates should assert that 273a(a) is not a crime of child abuse. The Ninth Circuit will re-consider, without deference to the BIA, whether 273a(a) is deportable child abuse. In Diaz-Rodriguez v. Garland, Ninth Circuit panel found that 273a(a) is not child abuse. That court en banc overturned the decision on the grounds that the court owed Chevron deference to the BIA. Then in Loper Bright (2024) the Supreme Court held that federal courts should no longer defer to agencies under Chevron. The Court remanded Diaz-Rodriguez (which had been pending at the Court) to the Ninth Circuit to consider in light of Loper Bright.237The panel in Diaz-Rodriguez v. Garland, 12 F.4th 1126 (9th Cir. 2021) held that 273a(a) (child endangerment) is not a crime of “child abuse” because endangerment is viewed as a different category than abuse, neglect, or abandonment. The case was reheard en banc and the majority held that they must defer to the BIA under Chevron and find that 273a(a) is a crime of child abuse. Diaz-Rodriguez v. Garland, 55 F.4th 697 (2022) (en banc). The party sought certiorari at the Supreme Court, where it was pending when the Court overturned Chevron in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). Subsequently the Court granted certiorari, vacated, and remanded Diaz-Rodriguez to the Ninth Circuit “for further consideration in light of” Loper Bright. Diaz-Rodriguez v. Garland No. 22-863, 2024 WL 3259656 (2024). At this writing the case is pending before the Ninth Circuit.Now the Ninth Circuit will reconsider whether, without deference, 273a(a) is a crime of child abuse. Adam Walsh Act. If ROC shows sexual conduct was involved, this might block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. | 750 |
| PC 370 | Public nuisance: offensive, obstructing etc. | Not AF | Should not be a CIMT; good alternative to lewd conduct | No other removal ground. An alternative plea for drug activity? |
Maintaining or causing a public nuisance is a six-month misd. Vaguely defined conduct could include lewdness, diverting water from a stream, etc. | 940 |
| PC 487 | Grand theft See PC 484, above, where value of property exceeds $950 See expansion of measure of $950 for PC 487, eff. 1/1/2025. | Not an AF if either 1 year or more is imposed, or loss exceeds $10k; yes AF if both are present in the same count. See PC 484 | Yes, CIMT for a new conviction, but at least arguably not a CIMT if conviction occurred before Nov. 16, 2016. See PC 484 notes. | No other removal ground | PC 487 See also AB 2943 expansion Because PC 487 uses the definition of theft in PC 484, see discussion there. This can be a valuable plea to avoid an agg felony, including when fraud is charged. Effective 1/1/25, expanded definition of the “aggregated” $950 value that is a basis to charge grand theft. The $950 can include value from acts committed against multiple victims and/or in other counties if the acts are motivated by one intention, plan, or impulse, evidence of which may include that acts involve the same defendant or defendants, are substantially similar in nature, or occur within a 90-day period. See AB 2943. On the upside, if D will be forced to accept a wobbler conviction for a theft offense that did not exceed $950, this expansion may make it possible to plead 487 rather than (new) 496.5 or 496.6. Section 487 is better for immigration purposes if a year or more will be imposed: unlike 496.5 or 496.6, 487 can take a year or more without becoming an AF (as long as the loss to victim/s did not exceed $10,000). | 1150 |
| PC 503 | Embezzlement | AF if the loss to victim/s exceeds $10k | Yes CIMT because it involves fraud | No other removal ground |
If loss exceeds $10k, plead to PC 487 and see discussion at PC 484. If this is not possible and one must plead to 503 with a loss > $10k, follow the instructions at PC 470. | 1200 |
| PC 529(a)(3) | False personation | If the offense resulted in loss > $10k, see Advice for PC 470, and consider plea to 484/ 487 If felony, see Advice | Held not a CIMT because the minimum conduct to does not include intent to gain a benefit or cause liability.238See People v. Rathert (2000) 24 Cal.4th 200, 206 (Pen C § 529(a)(3) does not require specific intent to gain a benefit, noting that “the Legislature sought to deter and to punish all acts by an impersonator that might result in a liability or a benefit, whether or not such a consequence was intended or even foreseen.… The impersonator’s act, moreover, is criminal provided it might result in any such consequence; no higher degree of probability is required.”). See also Paulo v. Holder, 669 F.3d 911 (9th Cir. 2011) (stating that Pen C § 529(a)(3) for false personation is not a crime involving moral turpitude); Linares-Gonzalez v. Lynch, 823 F3d 508 (9th Cir. 2016) (sections 530.5(a) and (d)(2) are not categorically CIMTs, because they are not fraud since they do not require the perpetrator to obtain anything tangible of value, and they are not vile, base or deprived crimes because they do not necessarily involve an intent to injure, actual injury, or a protected class of victim; they include only intent to annoy). Good alternative to a fraud offense | No other removal ground. | PC 529(a)(3) 1 yr sentence: Counterfeiting and forgery are AFs if 1 year is imposed. PC 529(a)(3) does not have counterfeiting or forgery as elements, but to avoid possible wrong charges, try to get 364 days or less and keep ROC clear of such conduct on felonies (because 1 yr cd be imposed on PV). SB 54. This is one of a few wobblers that do not destroy SB 54 protections limiting jail cooperation with ICE. See SB 54 advisory, www.ilrc.org/crimes. | 1220 |
| PC 4532(a), (b) | Escape Without force (a) With force, including simple battery (b) | Get 364 days or less on any single count, to avoid potential AF as obstruction of justice. | Should not be a CIMT, arguably even 4532(b), under older decisions finding seeking escape is not depraved conduct. See Advice. | No other removal ground. | PC 4532(a), (b) See citations and further discussion at this endnote, including for CIMT.239Pen C § 4532 as an AF as Obstruction of Justice. An offense that meets the generic definition of “obstruction of justice” is an AF if a sentence of one year or more is imposed on a single count. 8 USC § 1101(a)(43)(S). While some aspects of the definition of obstruction are contested (see, e.g., discussion of Pen C § 32, above), it is established that it includes intentional interference with an investigation or proceeding or in punishment resulting from a completed proceeding. See e.g., Matter of Valenzuela Gallardo , 27 I&N Dec. 449, 449 (BIA 2018). AF as obstruction of justice. Escape from court-ordered punishment almost surely meets the definition of obstruction, so counsel must avoid a 1-year sentence on any single count. AF as a COV. Arguably even 4532(b), escape by force, is not a COV because it can involve simple battery. But because a sentence of 1 year creates an AF as obstruction, this does not help. | 1510 |
| Former PC 12020 Repealed 1/1/12 See current 16590 for list of individual statutes, by weapon, previously prohibited by 12020 | Possession manufacture, sale, of various prohibited weapons; carrying concealed dagger | Sale of a federally defined firearm would be an AF but see Advice. Possessing or carrying a weapon is not an COV (but is a deportable firearms offense.) | Weapon possession is not a CIMT.240Possession of even a sawed-off shotgun has been held not to be a CIMT. See, e.g., Matter of Hernandez-Casillas, 20 I&N Dec. 262, 278 (BIA 1990); Matter of Granados, 16 I&N Dec. 726 (BIA 1979). Sale is unclear as a CIMT. Mere failure to comply with licensing requirement may not be CIMT.241See, e.g. Ali v. Mukasey, 521 F.3d 737, 740 (7th Cir. 2008) (unlicensed trafficking of firearms should not be a CIMT if it is a mere failure to comply with licensing or documentation requirements); cited with approval in Efagene v. Holder, 642 F.3d 918, 923 (10th Cir. 2011). | Possession of a firearm under this statute is a deportable firearm offense. See Advice. | Firearms. Trafficking in firearms is an AF, as well as a deportable firearms offense, if the state definition of firearm matches the federal definition. Here the definition of firearm appears to match: “firearm” defined in former 12020 and16590/17700 excludes antique firearms, just as the federal definition does. (Many California offenses do include antique firearms, and therefore do not have immigration consequences. See discussion at PC 29800.) However, former 12020 includes other conduct that does not have imm consequences, such as possessing a dagger, etc. In addition, even if the offense is held to be a firearm offense, 12020 included possession of a firearm, which at least would not be an aggravated felony. Immigration advocates can explore arguments that 12020 was indivisible as to weapon or conduct. See ILRC, How to Use the Categorical Approach Now (2021) Or assuming it was divisible, see endnote for effect of information in the ROC.242Conviction of former § 12020 for possession of a dirk, dagger, or other weapon that is not a firearm does not have immigration consequences, but a § 12020 conviction relating to a firearm is a deportable firearms offense and, if involved trafficking, is a firearms aggravated felony under 8 USC § 1101(a)(43)(C). This is true only if the statute is actually divisible as to the type of weapons and/or conduct. Misd is a “significant misdemeanor” for DACA, enforcement priorities if it is held to involve a firearm; see note at PC 25400. | 1560 |
| PC 29800 | Felon, addict, etc. who possesses or owns a firearm | Not AF due to antique firearms rule; see below and see also 29805, 29815(a), 29825. | Should not be CIMT but no precedent. Possession of even a sawed-off shotgun is not a CIMT, so arguably possession by a particular person of a ‘regular’ firearm is not, as this is a regulatory offense. | Not deportable firearms offense due to antique firearms rule. |
Antique Firearms Rule: A noncitizen who is convicted of a firearms offense (selling, carrying, using, possessing, etc.) is deportable.243See 8 USC § 1227(a)(2)(C). In addition, the definition of aggravated felony (AF) includes state offenses that are analogous to certain federal firearms offenses (including felon in possession of a firearm), as well as trafficking in firearms.244See 8 USC § 1101(a)(43)(C). However, the state definition of firearm must match the federal. The applicable federal definition specifically excludes antique firearms, while PC 16520(a) (formerly 12001(b)) does not exclude them, and has been used to prosecute antiques.245An antique is defined as a firearm made in 1898 or earlier, plus certain replicas. 18 USC § 921(a)(3), (16). The Ninth Circuit held that no conviction of an offense that uses the definition at PC 16520(a) or former 12001(b) is a deportable firearms offense or a firearms AF. This is true even if the firearm involved in the particular case was not an antique.246Conviction of an offense involving a federally defined “firearm” can trigger deportability under 8 USC § 1227(a)(2)(C). Some state firearms offenses are aggravated felonies, including trafficking in firearms and analogues to federal firearm offenses such as being a felon in possession, as long as the offense involves a federally defined firearm. 8 USC § 1101(a)(43)(C). The federal definition of firearm specifically excludes an antique firearm, defined as a firearm made in 1898 or earlier, plus certain replicas. 18 USC § 921(a)(3), (16). In U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014), the court held that conviction of a California firearms offense does not come within the firearms deportation ground, and is not a firearms aggravated felony, if antique firearms ever have been prosecuted under that statute—even if the defendant used a non-antique firearm. Further, this rule applies to any conviction under any California statute that uses the definition of firearm at Pen C § 16520(a), formerly § 12001(b). Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (“We hold that Aguilera-Rios applies to any California statute based on the definition of ‘firearm’ formerly appearing at § 12001(b).”) Since 2012, the definition of firearms at § 12001(b) was moved to § 16520(a), with no change in meaning. Because PC 29800 uses the PC 16520(a) definition, it is neither an AF nor a deportable firearms offense. Note, however, that 16520(d) lists offenses that do not include “unloaded antique firearms” so the antique firearms rule might not apply to these offenses, and 16520(f) offenses explicitly use the federal firearms definition, and would fall outside the antique firearms rule. As with many crim/imm defenses, Congress could eliminate this defense by changing the federal statute, and conceivably could apply the change retroactively to past convictions. When a good option exists, it is best to avoid firearms convictions even though the law is currently favorable. But as long as the statute is not changed, this defense is approved by the Supreme Court and case law will not change it. As always, D’s best defense against a future change in the law is to naturalize to U.S. citizenship, after obtaining expert advice from a crim/imm specialist that it is safe to apply. Further AF protection: In case the antique firearms rule ever is lost, another option is to give D possible further protection from an AF by pleading to being a felon who owns rather than possesses a firearm.247See U.S. v. Pargas-Gonzalez, 2012 WL 424360, No. 11CR03120 (S.D. Cal. Feb. 9, 2012) (concluding that former Pen C § 12021(a) is not categorically an aggravated felony as an analog to 18 USC § 922(g)(1) (felon in possession) because § 12021 is broader in that it covers mere ownership of guns by felons), citing U.S. v. Casterline, 103 F.3d 76, 78 (9th Cir. 1996) in which the court reversed conviction under § 922(g)(1) where defendant owned a firearm but was not in possession at the alleged time. Like the former § 12021(a), the current § 29800 prohibits owning a firearm. In addition, do not identify a specific firearm in ROC. Particularly Serious Crime: The Ninth Circuit held that a conviction for federal felon in possession potentially can be held a PSC (for purposes of CAT).248Bare v. Barr, 975 F.3d 952, 963 (9th Cir. 2020) (IJ was correct that the elements of felon in possession “potentially bring the offense within the ambit of a particularly serious crime.”) | 1671 |
| Prior, Pre-Prop 64 H&S C 11357, Prior version: Analysis of 11357 as written before Prop 64 took effect on 11/9/16 | See article for more on Prop 64 and on marijuana and immigrants.249See analysis or Prop 64 at ILRC, Immigration Impact: The Adult Use of Marijuana Act (September 2016) at https://www.ilrc.org/immigration-impact-analysis-adult-use-marijuana-act. Possess: | Not AF, unless a prior possession is plead or proved | Not CIMT | Pre-Prop 64: Deportable and inadmissible CS offense, except that there is less punishment for conviction/s arising from a first incident involving possession of 30 gm or less of marijuana. See discussion at current 11357(a), above. | Argument: See Advice at current 11357(a)(2), above, for argument that cannabis as defined by California law is not a controlled substance for immigration purposes. Pre- and post-Prop 64 versions of 11357 have different subsections that prohibit different conduct. Please read the full discussion of marijuana at the analysis of the current, post-Prop 64 version of 11357, above. Prop 64 Post-Conviction Relief. Prop 64 provides a post-conviction relief mechanism that can dismiss and seal a conviction for conduct that no longer is unlawful because the conviction is “legally invalid.” H&S C 11361.8(e)-(h). While this ought to be an effective vacatur for imm purposes, until we have precedent to that effect the best practice is to act conservatively and use post-conviction relief vehicles such as 1473.7, 1203.43 for former DEJ, and others. See more resources at https://www.ilrc.org/immigrant-post-conviction-relief Concentrated cannabis: See discussion in current 11357(b), Advice column, above, regarding conviction under former 11357(a). Schools. Conviction under former 11357(d) does not qualify for the 30 grams benefit. See current 11357(c), above. | 150 |
| PC 236, 237(a): Felony | False imprisonment by violence, menace, fraud, or deceit (Felony) | Should not be held an AF as a COV. But because there is no immigration case on point, try to get 364 days or less. However, if you must take a year this is a reasonable plea option because the law is clear. See Advice | The Ninth Circuit held 237 by menace is not a CIMT, and other subsections such as by deceit also should not be. Because the statute is indivisible, no 237 felony conviction should be a CIMT. But to avoid possible wrongful CIMT charge, plead to menace or deceit. For further discussion and citations, see Advice. | This should not be held a COV and thus should not be a deportable crime of DV. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a). Adam Walsh Act. Conviction of false imprisonment of a minor can prevent a USC or LPR from immigrating family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. |
See this endnote250Felony Pen C § 237 is overbroad and indivisible as a COV and as a CIMT. Significantly, the California Supreme Court held that felony PC 237 is not divisible between violence, menace, fraud, and deceit. That means that the minimum conduct to commit the offense by any means (e.g., by deceit) is the standard for deciding COV and CIMT. However, because there is no immigration case on point this may be hard for unrepresented immigrants. More on COV. Felony 236/237 is a good alternative to a COV such as 245, 273.5, 422. Because the minimum conduct required for guilt is low and the California Supreme Court held that the statute is not divisible, no 236/237 conviction should be a COV for any purpose, regardless of info in the ROC—including under the Stokeling decision. See discussion in above endnote. Still, because there is not yet a BIA or Ninth Cir decision on point, immigrants could be wrongly charged with a COV. To be safer, plead specifically to deceit and keep violence out of the record. Or give the defendant, imm attorney, and/or friend a photo of the COV analysis in the above endnote. To more surely avoid an AF if a year is imposed, consider 460(a) or (b), 487 (a CIMT) or 530.5, or probably 594 (defacing). | 570 |
| PC 476a(a) | Bad check with intent to defraud | AF if loss to the victim/s exceeds $10,000; see Advice. | CIMT. See 529(3), 530.5, to try to avoid CIMT. | No other removal ground. | PC 476a(a) To avoid an AF based on conviction of a fraud or deceit offense where loss to the victim > $10k, see PC 484. If that is not possible, follow Advice for PC 470. Prop 47: Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.251See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014). | 999 |
| PC 273a(b) | Child endangerment involving conduct not likely to cause GBI or death (Misdemeanor) | No conviction of 273a(a) or (b) is a COV because they involve negligence; see PC 273a(a), above. | No conviction should be held a CIMT; see PC 273a(a), above. Do not plead to attempt to commit 273a(a) or (b), because it involves intent rather than negligence and is likely a CIMT. | Not a deportable crime of child abuse. The BIA stated 273a(b) never is a deportable crime of child abuse.252The BIA stated that § 273a(b) is not a deportable crime of child abuse. See Matter of Mendoza-Osorio, 26 I&N Dec. 703, 710 (BIA 2016), discussed in ILRC, Practice Advisory: Cal Pen C 273a(b) is not a deportable crime of child abuse (February 2016) and ILRC, 2022 Case Update: Domestic Violence Deportation Ground (March 2022), both at www.ilrc.org/crimes. This should be an immigration-neutral offense. |
273a(b) can be a good plea to avoid a deportable crime of child abuse, especially as a substitute for 273a(a). Also, while a DUI with an enhancement for having a child in the car (VC 23572) is likely a deportable crime of child abuse, separate convictions for DUI and for 273a(b) are not. See discussion at 23572. Adam Walsh Act. If ROC shows sexual conduct was involved, this might block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act. | 759 |
| PC 29815 | Possess, etc. firearm in violation of probation condition | Not AF. | Should not be a CIMT because this is a regulatory offense. | Should not be deportable firearms offense; see discussion in PC 29800 | 1685 | |
| VC 2800.4 | Flight from peace officer while driving against traffic | Seek 364 days or less in case it would be charged as an AF as obstruction of justice. See Advice. Not an AF as COV because it includes recklessness. | Yes CIMT253In finding that Veh C § 2800.4 is a CIMT, the Ninth Circuit noted, “Qualifying non-fraudulent crimes ‘almost always involve an intent to injure someone, an actual injury, or a protected class of victims.’ But the non-fraudulent category also includes some crimes that seriously endanger others, even if no actual injury occurs.” Giving Skidmore deference to an unpublished BIA opinion, the court held that “willfully driving in the wrong direction while willfully fleeing a pursuing police officer inherently creates a risk of harm to others that is substantial enough for the statute categorically to meet the definition of a crime involving moral turpitude.” Moran v. Barr, 960 F.3d 1158, 1160, 1161–62 (9th Cir. 2020). It distinguished § 2800.4 from the less serious offense § 2800.2, which can be committed by violating three traffic laws while in flight, and which has been held not to be a CIMT. | No other removal ground |
AF as COV. Supreme Court affirmed that reckless conduct cannot amount to a COV. See discussion of Borden v. United States (2021) at PC 207. AF as obstruction: Obstruction of justice is an AF, if a year or more is imposed. Counsel should assume conservatively that VC 2800.4 could meet the definition of obstruction. See discussion of the Supreme Court decision on obstruction, Pugin v. Garland, No. 22-23 (June 22, 2023), at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence. | 1765 |
| PC 288.3(a) | Communicating with a minor or person D knew or had reason to believe was a minor, with intent to commit certain offenses | Assume 288.3 is divisible as an AF: it is an AF only if the intended offense, plus 288.3 elements of intent and knowledge, is an AF. Not AF: Supreme Court held that sexual conduct with a person under age 18 is not an AF as SAM; see 261.5(c). Therefore 288.3 with intent to commit 286(b)(1) 287(b)(1); 289(h) should not be. Good plea. 288.3 with intent to commit 207(a) (at least without a year imposed) should not be an AF. Arguably 288.3 and 288(c)(1), and 273a at least with less than a year, are not AFs in Ninth Cir. If the intended offense is an AF, 288.3 is one. For example, intent to commit 209(b) or 261. See Advice. | Ninth Circuit held 288.3 is divisible as a CIMT, based on the elements of the intended offense plus 288.3 elements: Not a CIMT: -Court stated that 288.3 with intent to commit 207(a) is not a CIMT-Same should apply to 288.3 with intent to engage in sexual conduct with minor under age 18, per 286(b)(1), 287(b)(1), 289(h). Section 261.5(c) is not a CIMT, so these should not be. See Advice. Yes a CIMT: -Court held 288.3 with intent to commit 288(c)(1) is a CIMT (because 288.3 adds knowledge of age element, which according to the court makes 288(c)(1) a CIMT). -Likely 288.3 with intent to commit 273a (because 288.3 will add intentionality and subtract negligence) – any intended offenses that are CIMTs, e.g., 261 See Advice. | Should avoid a deportable crime of child abuse. See discussion here.254PC 288.3 should not be held a deportable crime of child abuse. The BIA held that the generic definition of a deportable crime of child abuse requires a child as the victim, not a police officer posing as child. See Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 794 (BIA 2020) (“The Department of Homeland Security has argued that the respondent is ineligible for cancellation of removal as one convicted of a crime of child abuse under section 237(a)(2)(E)(i) of the Act, but because no actual child was ever involved in this case, we cannot make such a finding. See generally Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008) (holding that a “crime of child abuse” is an offense that “constitutes maltreatment of a child.”). Section 288.3(a) includes communication with a police officer posing as a minor, because it includes attempt. People v. Korwin (2019) 36 Cal. App. 5th 682. Therefore it is overbroad compared to the definition of child abuse in that way. Try to plead to attempt (under 288.3, not under PC 664), or better yet, specifically to communication with an officer, to make this distinction clear to an uninformed immigration judge or official. Or leave the record vague. But even if the record specifically shows a minor rather than an officer, removal defense advocates can establish that the statute is not divisible because it is not phrased in the alternative between an officer and an actual minor. The concern is for unrepresented immigrants. Adam Walsh Act. This conviction can block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act |
It appears that 288.3 can range from an immigration-neutral offense to an AF. See case citations, list of enumerated intended offenses, and further discussion here.255288.3 as a CIMT. PC 288.3 provides that any person “who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 287, 288, 288.2, 289, 311.1, 311.2, 311.4 or 311.11, or former Section 288a, involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.” Some advantages to a plea to 288.3(a) are (1) it should avoid deportability for child abuse (because a posing police officer can be the ‘victim’), and so may be safer than a direct plea to, e.g., 261.5(c) or 287(b)(1) (oral sex with a person under age 18), and (2) the sentence may be shorter; it is the same as attempt to commit the intended offense Plead to intent to commit sexual conduct with a minor under age 18: A plea to 288.3 with intent to engage in sexual conduct with a minor under the age of 18, under PC 286(b)(1) (sodomy), 287(b)(1) (oral sex), or 289(h) (penetration), should not be an AF or CIMT, because those target offenses are not AFs or CIMTs and the addition of 288.3 elements does not change this. The 288.3 plea might offer an advantage: while ICE might charge those offenses by themselves as crimes of child abuse under Matter of Aguilar-Barajas, a 288.3 conviction should not be held child abuse because the ‘victim’ can be a police officer posing as a child. See column on child abuse, to the left. Plead to intent to kidnap, with a sentence of less than a year. The Ninth Circuit held that 288.3 with intent to commit 207(a) is not a CIMT. A kidnapping offense arguably never is a COV, but even if it were held a COV (under the Stokeling decision), it would not be an AF without a sentence imposed of a year or more. Beware of 288.3 with 288(c)(1), 273a. When elements of 288.3 are added to target offenses like these, they are no longer immigration neutral. -288.3 adds knowing or having reason to believe the victim is a minor. This is why the Ninth Circuit held that 288.3 with intent to commit 288(c)(1) is a CIMT, although 288(c)(1) alone is not a CIMT, partly due to possible mistake of age. Instead, consider a plea directly to 288(c)(1) or attempt. -288.3 adds intentional conduct. That is why 288.3 with intent to commit 273a is a likely CIMT, just as attempted 273a would be. Section 273a itself is not a CIMT because it can be committed by negligence. But with attempted 273a, or 288.3 trying to arrange for 273a, the conduct is no longer negligent; it is intentional. It is better to plead directly to 273a(b) or other option. Effect on discretion: Even if the conviction does not make the person inadmissible or deportable, if the underlying facts are egregious (e.g., large age difference or younger minor) it is likely a significant negative factor in any application for immigration relief.
| 835 |
| PC 601 | Trespass with credible threat. | Get 364 days or less to avoid AF as COV. | Assume CIMT. | As a COV, it is a deportable crime of DV if V and D share a protected domestic relationship. |
Very likely to be held a COV or CIMT because the elements.256PC 601, trespass with credible threat, is likely to be held a COV (and thus an AF if a year or more is imposed, and/or a deportable DV offense if the victim has protected domestic relationship) and a CIMT. It has the following elements: (1) defendant made a credible threat to cause serious bodily injury; (2) defendant did so with the (specific) intent of placing that person in reasonable fear of their safety or the safety of their immediate family; and (3) defendant unlawfully entered the residence or workplace of the complaining witness with the (specific) intent to carry out the threat against the target of the threat. CALCRIM 2929. | 1335 |
| PC 191.5(a), (b) | Vehicular Manslaughter while Intoxicated | Not an AF even with a year, because gross negligence is not a COV. | Arguably 191.5(a) is not a CIMT, but ICE might charge it as one and the law is unsettled. If it is critical to avoid a CIMT, try hard for 191.5(b) or another offense. PC 191.5(b) should not be held a CIMT as it does not require gross negligence. | Not deportable. | PC 191.5(a), (b) COV. An offense must be committed intentionally or with “depraved heart or extreme recklessness” to be a COV. See discussion of U.S. v. Draper at PC 192(a), below. Because 191.5 is committed with gross negligence, it is not a COV and thus is not an AF even with a year. CIMT. While there is no case on point, removal defense advocates may have a strong argument that PC 191.5(a) is not a CIMT.257Pen C § 191.5(a) as a CIMT. While there is no case on point, removal defense advocates can argue that PC § 191.5(a) is not a CIMT. The BIA has held that the definition of CIMT includes an offense with an element of recklessness when the risk is serious, such as imminent risk of death or injury. Recklessness is defined as a conscious disregard of a known risk, i.e., the person must subjectively know the risk and ignore it. But in a case involving an Arizona reckless endangerment statute, the BIA adopted Arizona’s expanded definition of recklessness that includes “a person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication…” Thus, it found that A.R.S. 13-1201(A), “recklessly endangering another person with a substantial risk of imminent death,” which included that expanded definition of recklessness, was a CIMT. Matter of Leal, 26 I&N Dec. 20 (BIA 2012). | 485 |
| PC 592 | Fraudulently stealing water for agricultural, etc., uses | May be an AF if value of water exceeds $10k, or possibly if sentence of one year or more. See Advice. Possible alternative to H&S C 11358 | Because fraud is an element, it appears to be a CIMT | Appears not to trigger any other removal ground. But if this is pled to in response to a charge of 11358, gov’t will be on alert to seek evidence to prove the person is inadmissible because they have “reason to believe” the person engaged in drug trafficking. |
Possible alternative to a plea to 11358, which is at risk of being a drug trafficking “aggravated felony” even if the offense itself is an infraction. Section 592 is not a drug offense, although it appears to be a CIMT. PC 592 is a 6-month misd. unless the value of the water exceeds $950 or there is a prior offense, in which case it is a wobbler. AF: The statute identifies the offense as involving fraud, but possibly ICE would argue that it involves theft because water is “property.” To avoid that issue, avoid a sentence of a year or more imposed on any given count. Because it involves fraud, if the amount of water taken exceeds $10,000 in value, consider a plea to PC 487 rather than 592 or get expert help on setting out the plea. | 1305 |
| PC 261(a)(4) This also applies to PC 286(f), 289(d) | Rape by fraud | Might not be an AF as rape. See Advice Section 286(f), 289(d) should have the same analysis | Yes CIMT | No other removal ground, since this is not a crime of violence and does not have minor age as an element. | PC 261(a)(4) See Advice on other pleas at PC 261, above AF. The Ninth Circuit remanded to the BIA the question of whether rape by fraudulent representation, PC 261(a)(4)(D), meets the generic definition of rape. If it does not, then no conviction under 261(a)(4) is rape, because (4) is not divisible between the subsections (A) – (D).258Pen C § 261(a)(4) might not be an aggravated felony as rape. To be an aggravated felony as rape (INA § 101(a)(43)(A)), the elements of an offense must meet the federal generic definition of rape. PC 261(a)(4) is defined as sexual intercourse accomplished at the time the V is unconscious of the nature of the act due to various conditions, including intoxication, inability to understand, and, in 261(a)(4)(D), “due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose” (e.g., a doctor fraudulently represents that the conduct serves a medical purpose). The question is, does that come within the definition of “generic” rape? Because it is not clear how the BIA and the Ninth Circuit ultimately will rule, defense counsel should not rely on this defense – but if 261 is inevitable, a plea to (a)(4) is best. Removal defense advocates should raise and preserve the argument pending a BIA and then Ninth Circuit opinion. | 685 |
| PC 350(a) | Counterfeit mark on goods: create, possess for sale, sell | AF if a year or more is imposed AF if loss > $10k, under 350(a)(2). See Advice. | Assume it is a CIMT | No other removal ground |
AF: PC 350(a) must avoid both a sentence of a year or more (to avoid AF as “counterfeit”) and a loss > $10k (to avoid AF as fraud) on any single count.259Section 350 is a “counterfeiting” offense that becomes an AF if a year or more is imposed, under INA § 101(a)(43)(R). Rodriguez-Valencia v. Holder, 652 F.3d 1157, 1158 (9th Cir. 2011). It also will be held to be an offense of deceit that becomes an AF if loss to the victim/s exceeds $10,000, under § 101(a)(43)(M). A plea to 350(a)(1) should accomplish both, because it is a misdemeanor (364-day max) where loss is not > grand theft, which is $950. Or consider PC 484/487, which can take either a year sentence or a loss > $10k, but not both. | 917 |
| PC 368(e) | Elder abuse: Theft, Fraud, Forgery, 530.5 by caretaker | See 368(d), including Advice. 368(e)(1) is not an AF because the top is 364 days and $950 loss, while (e)(2) could become an AF if 1 yr or more is imposed and/or loss > $10k. | See 368(d) re the possibility that 368 by 530.5(a) is not a CIMT. But in 368(e), an additional negative factor for CIMT is that D knows V is elder and has a caretaker relationship. | No other removal ground | PC 368(e) AF. Same analysis as 368(d). | 932 |
| H&S C 11361(b) | (b) Unlawfully gives or offers to give cannabis to a minor age 14 or older. | Offering to give should not be an AF, but in the Ninth Circuit only. Assume that giving any amount is an AF and that defenders must avoid this. See Advice for alternatives. Removal defense advocates should see Advice for arguments, including that California cannabis is not a federal CS. | Conservatively assume it is a CIMT, although this can be contested. | Controlled substance offense (but see Advice for argument that California cannabis is not a federal controlled substance) Assume it is a deportable crime of child abuse (but see Advice) | H&S C 11361(b) Defenders should try hard to avoid this and any drug offense. Consider trying for a charge that can take pre-trial diversion at PC 1000, 1001.95, or other, or a plea to 272, 273a(b), 370, 372.5, 415, etc. For felonies or strikes, PC 32 or 136.1(b)(1) – but sentence must be under 1 yr – or maybe 459 1st or 2nd degree, etc. Argument that California cannabis is not a federal CS because the definition of cannabis is overbroad and indivisible, under the categorical approach. See Advice at 11357(a)(2). If that argument prevails, no conviction from on or after 11/9/16 of a cannabis offense will be a drug trafficking AF or a CS offense for immigration purposes. Defenders should not rely on this, but advocates in removal proceedings can raise the defense. AF. See citations in this endnote.260H&S C § 11361(b) as an AF. Offering to give or sell a CS (controlled substance) is not an AF (aggravated felony), in the Ninth Circuit only. See, e.g., U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc) (H&S C § 11352 is divisible between types of conduct, because offering is not an AF) and discussion at 11379. Why these? First, offering to give (or sell) a CS is not an AF, in the Ninth Circuit only. See 11379. Second, nationally, while giving away a CS generally is a drug trafficking AF, giving away a “small amount of marijuana” is not an AF; thus 11360 is not an AF. But giving away a small amount of mj to a minor, 11361(b), is not secure. It’s also possible that the circumstance specific analysis could be used here, so that even conviction of an 11360 offense, which does not have a minor recipient as an element, could be held an aggravated felony if the facts show that the recipient in fact was under age 21, under the circumstance specific approach. That is why we recommend that in the case of 11360 as a substitute plea, one should identify a specific person 21 years or older if possible. CIMT. The BIA has held that giving a CS away for free is a CIMT. But because two thirds of U.S. states permit sale of medical or recreational mj, arguably giving away (or selling) mj now is a “regulatory” offense and not a CIMT. Arguably this applies to giving it to a 17-year-old, like the non-CIMT of giving or selling liquor to a minor. Defenders should not rely on this, but removal advocates should raise it. Child abuse. The issue may turn on whether, under the categorical approach, mj is sufficiently “harmful” to a 17-year-old. Defenders should not rely on this, but removal defense advocates can argue that, like selling or giving alcohol to a 17-year-old, this does not rise to the level of child abuse. | 183 |
| B&P C 2052 | Unlicensed practice of medicine | Not an AF | Should not be a CIMT because it’s a regulatory offense. See B&P C 25658. | No Should not be a conviction of a controlled substance (CS) offense, but see other defense options at H&S C 11377. See Advice. | B&P C 2052. See also B&P C 2051. This wobbler might be accepted as a substitute for a drug charge. (For example, it was extended to an owner of a medical practice who did not themselves practice261See, e.g., People v. Perry, No. D054821, (Cal. Ct. App. Jul. 29, 2010) (unpublished) (upholding conviction of owner of medical marijuana practice despite the fact that the person didn’t treat patients himself, because “the statute makes no distinction between the practice of medicine and the business side of managing a medical practice”).). Because it has no element relating to specific substances it never should be held a CS offense, but best practice is to remove mention of specific CS in all documents in record of conviction | 10 |
| BP C 4080 | Dangerous Drugs, Devices must be open to inspection | No | No | Should not be a conviction of a CS offense but see other defense options at H&S C 11377. See Advice. |
The statute uses the word “drug” and “device” which are overbroad and indivisible as a CS offense. While not legally required, best practice is to remove mention of specific CS in all documents in record of conviction. See BP 4022 (drug defined); BP 4023 (device defined) | 12 |
| H&S 11352.1(b) | Unlicensed furnishing or dispensing prescription drug, CS, or “dangerous” drug or device.262A “dangerous drug” or “dangerous device” is defined generally as a drug or (medical) device unsafe for self-use. (B&P 4022, 4023.) These cannot ordinarily be furnished without a prescription. (See B&P 4059 et seq.). A “drug” is defined at H&S C § 11014 to include more substances than those included under the federal Controlled Substance Act; it is overbroad and indivisible as a controlled substance offense for immigration purposes. | Not an AF | Should not be a CIMT because it appears to be a regulatory offense, but no case precedent.263See, e.g., Dodd v. State of California Veterinary Med. Bd., No. A124052, 2009 WL 4643931, at *1 (Cal. Ct. App. Dec. 8, 2009) (unpublished) (licensed veterinarian offering alternative medicine). | Should not be controlled substance offense. | H&S 11352.1(b) Should not be held divisible between drug, CS, and device.264See CALCRIM 2966, which does not require a jury to decide unanimously between alcohol, drugs, or controlled substances.Best practice is to plead to “dangerous device” and sanitize all documents in record of conviction. | 105 |
| H&S 111440 | Manufacture, sell, deliver, hold, or offer for sale any misbranded drug or device265A “device” is an instrument, apparatus, machine, implant, in vitro reagent, or contrivance, including its components, byproducts, or accessories, used in the diagnosis or treatment of a human or other animal or “[t]o affect the structure or any function of the body of a human or any other animal.” B&P 4023. “[D]evice” does not include contact lenses or prosthetic or orthopedic device not requiring prescription. Id. A “drug” is defined at H&S C 11014 to include more substances than those included under the federal Controlled Substance Act, and thus is overbroad as compared to a “controlled substance.” | Not an AF | Should not be a CIMT because it appears to be a regulatory offense, but there is no case precedent. | Should not be CS offense, as the term “drug” is overbroad and indivisible. |
This might not be divisible between drug and device, and the term “drug” is not divisible. Still, while this is not legally necessary, best practice is to plead to “device” and sanitize all documents in the record of reference to a federal CS. Consider defenses at 11377 before pleading to this offense. | 285 |
| PC 148.10 | Causing serious bodily injury or death while resisting arrest | Yes assume AF as obstruction of justice if a year or more is imposed. See Advice. Shd not be a COV | Arguably not a CIMT. See Advice. This means that if a sentence of a year or more can be avoided, this is not a removable offense. | No other removal ground. | AF. Obstruction of justice is an AF, if a year or more is imposed. Counsel must assume conservatively that PC 148.10 meets the definition of obstruction. See discussion of the Supreme Court decision on obstruction, Pugin v. Garland, No. 22-23 (June 22, 2023), at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). If a year or more sentence is required, consider safer offenses such as 236/237, 487, 459/460(a) or (b), 591, or possession of a weapon. For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence. CIMT, COV. Arguably 148.10 is not a COV or CIMT because it can be committed with no contact, no recklessness, and no intent beyond escape. For example, conviction was upheld when a suspect ran away from officers and the officers fell and injured themselves while pursuing the suspect in the dark.266Pen C 148.10 covers injury an officer sustains while they chase an individual who has fled from police but has not used or risked force. People v. Superior Ct. (Ferguson), 132 Cal. App. 4th 1525, 1535 (2005) (running away from officer constitutes resisting arrest, and when officers injured themselves while pursuing the person on foot at night, this was sufficient for guilt under PC § 148.10). See also United States v. Medina-Fructuoso, 472 F. App’x 758, 759 (9th Cir. 2012), an unpublished decision where parties agreed that PC § 148.10 is not a crime of violence. | 425 |
| PC 372.5 (effective 01/01/2023) | Public nuisance under PC 370 includes anything injurious to health, etc. Punishable under PC 372.5 (a) infraction; (b) misdo or infraction; or (c) 16-2-3 felony or misdo | Not AF Not an AF as “drug trafficking” b/c PC 370 is overbroad and indivisible. But better option is to plead to an immigration-neutral non-drug offense, especially for persons who must apply for relief. See Advice | Not CIMT Public nuisance is not a CIMT. | Not a CSO conviction. Under the categorical approach, 370/372.5 cannot be a federally defined CS conviction because it has no element relating to CS. PC 372.5 does not admit to a CS offense, and “drug” in the statute is overbroad and indivisible compared to definition of CS. See 372.5(d). Inadmissible if “admits” CS offense? Immigration authorities may pressure the person to formally admit to the original CS offense, in an effort to make the person inadmissible, or they may deny relief as a matter of discretion. Immigration advocates should resist this. Might be inadmissible for “reason to believe” trafficking if there is sufficient evidence. See Advice. |
For more information, see discussion at H&S C 11377 and see ILRC, How to Defend Immigrants Charged with Drug Offenses, including PC 372.5 (2023). See also ILRC, Fact Sheet on PC 372.5 which, e.g., can be provided to prosecutors. What it does. PC 372.5 allows the parties to agree to plead to public nuisance in lieu of the drug charges (much like a “wet reckless” in lieu of DUI charges). Similar to a wet, the DA cannot affirmatively charge 372.5, but if defense request it DA will decide whether to agree. D can plead to public nuisance as felony, misdemeanor or infraction under PC 372.5(a)-(c) and the drug charges will be dismissed. D pleads to being a public nuisance, PC 370. Under the categorical approach, 370 is not a conviction of a CS offense, CIMT, or AF. But the plea still helps some clients more than others, because some inadmissibility grounds do not require a conviction; see below. Compare to PC 32. Felony or misd PC 32 has long been used as an informal substitute immigration plea for a drug charge to avoid a CS conviction. PC 372.5 has similar effect, except (1) 372.5 can take a year or more without being an AF, while PC 32 cannot and (2) PC 372.5 directly refers to dismissed drug charge. While this reference may make some DA’s more willing to accept the plea, it also make immigration authorities more likely to try to punish the person by seeking to find them inadmissible without a conviction (if the person actually has to prove they are admissible. Which clients this best helps. Conviction of 372.5 should not make a non-USC deportable. That would require conviction of an AF, CS offense, or CIMT. But 372.5 does not entirely protect the person from being inadmissible under grounds that do not require a conviction. LPRs. Conviction of 372.5 will not make an LPR deportable. It may help LPRs who travel outside the US. (although this is NOT recommended) or who have become deportable but can apply for relief where they do not have the burden to prove they are admissible. But an LPR who applies for adjustment of status as a defense to removal must show they are admissible. They face the same problem as undocumented clients, described below. See endnote on LPRs267When a plea to PC 372.5 is not necessarily dangerous to an LPR. No LPR will be found deportable for a plea to PC § 372.6, because deportability requires a conviction of a federal controlled substance. Undocumented people; inadmissibility without a CS conviction. All undocumented clients must apply for immigration relief in order to remain lawfully in the U.S. Most but not all forms of relief require them to prove they are admissible, as well as deserving of a positive exercise of discretion. Two grounds of inadmissibility linked to CS do not require a conviction and thus are not entirely protected by 372.5. First, a person who makes a qualifying admission that they committed a CS offense is inadmissible. Immigration authorities may pressure the person to “admit” to a federal-CS offense, to make themselves inadmissible (although BIA case law indicates that if conduct was brought to court and charges dropped, admission of that same conduct should not trigger inadmissibility.268Several older BIA decisions have found that one is not inadmissible for admitting a CIMT or CS offense, if that conduct was brought to criminal court and the result was less than a conviction, e.g., due to charges being dropped. See discussion in the above endnote of this principle and see Matter of E.V., 5 I&N Dec. 194 (BIA 1953); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968), Matter of Seda, 17 I&N Dec. 550 (BIA 1980).) Even without a formal admission, information about the underlying conduct, or just their refusal to discuss it, might be a basis for a discretionary denial. If instead they had pled to a different, non-CS related offense, there likely would be less pressure. Second, if immigration authorities have probative and substantial evidence to support “reason to believe” the person ever assisted or participated in trafficking in a federal CS, they are inadmissible. The 372.5 in response to trafficking charge may inspire ICE to seek that. This is a fact-based removal ground and evidence is not limited to the record or the person’s own admissions. Evidence of sale, possession or cultivation for sale, may be sufficient for this ground (although dropped charges alleging sale should not), so defenders can only do so much. See discussion in HSC 11379 Still, removal defense counsel may be able to prevail despite this. Note that in every case, 372.5 or 32 are far better than conviction of an offense relating to a federal CS. (The only exception might be for a non-USC who would not be destroyed by a possession conviction, e.g., an asylee or refugee, and who thinks a plea to possession will help prevent inquiries into whether there is “reason to believe” they trafficked.) In sum, the best resolutions for a drug charge in order are 1. No conviction (e.g. dismissal or pretrial diversion) 2. Conviction of a substitute immigration-neutral offense that does not relate to drugs, or conviction of an offense relating to specific non-federal substance. 3. Plea to misdo PC 32, PC 372.5 or (with less than a year) felony PC 32 See discussion of defense strategies at 11377, above. Factual basis for the plea: Best practice is to avoid a record that describes drug conduct. If possible, state as a factual basis conduct that is charged under 370 (loud noise, etc.). Or decline to state specific facts under People v. Palmer, 58 Cal.4th 110 (2013). See Advisory, above. | 945 |
| PC 836.6 | Escape or attempted escape from (a) sheriff custody or (b) officer custody after arrest Misdemeanor or Wobbler if forcible escape causes officer injury | Misdemeanor: Never AF as obstruction because maximum sentence is 364 days.(But pre-2015 misdos that have sentence of 1 year may be so held) Wobbler: Get 364 or less to avoid AF as a COV or obstruction | Misdo: Should not be CIMT. See PC 4532(a) Wobbler: Likely CIMT, but a plea to “offensive touching” might prevent this.269Pen C 836.6 as a CIMT. Like Pen C § 243(d), “force or violence” in 836.6 can be committed by a mere offensive touching that somehow causes serious bodily injury. (See Cal Crim Jury Instructions 2763). But ICE may assert that 836.6 is categorically a CIMT, because that level of injury must mean that real violence was used and harm was intended. Defenders should conservatively assume it will be so held, but immigration advocates can see discussion of Pen C § 243(d) and United States v. Perez, 932 F.3d 782 (9th Cir. 2019). There the Ninth Circuit (arguably incorrectly) held that 243(d) is a COV; however, PC 243(d) has been held not to be a CIMT. See also ILRC Practice Advisory, Ninth Circuit Holds California Penal Code 243(d) is a Crime of Violence in U.S. v. Perez (2019), https://www.ilrc.org/resources/practice-advisory-ninth-circuit-holds-calif-pen-c-243d-crime-violence-us-v-perez. See Pen C 243(d) and see Advice. | No other removal grounds. See PC 4532(a). | PC 836.6 AF. Defenders should conservatively assume that PC 836.6 as a wobbler is a potential AF as obstruction of justice or as a COV, if a year or more is imposed.270Pen C § 836.6 as an AF. As a wobbler, PC 836.6 , escape or attempted escape, is a potential AF if a year or more is imposed as either obstruction of justice or a crime of violence (COV). For strategies to avoid a year for immigration purposes, see N.4 Sentence. Alternatives: To avoid an AF if a year is required, consider PC 236/237, 459, 591, 594, or even 207 (but this is less sure). To avoid a CIMT, consider misd 836.6 or, with a sentence of less than a year, misd or felony 32, 69, 148(a), 136.1(b)(1). | 1485 |
| PC 273.6(d) | Second violation of a protective order within 7 years, where the violation includes violence or a credible threat of violence. | 273.6(d) is a COV and thus an AF if a year or more is imposed.271PC 273.6(d) (as well as PC 166(c)(4)) as a COV. This and other sections of PC 273.6 and 166 conviction can cause deportability as a judicial finding of a violation of a DV stay-away order, under INA § 237(a)(2)(E)(ii). But a separate penalty applies to 273.6(d) and 166(c)(4), because these also are crimes of violence (COV). If a year or more is imposed, conviction will be an aggravated felony. See INA § 101(a)(43)(F). Sections 166(c)(4) and 273.6(d) are nearly identical, and this analysis applies to both. They punish as a wobbler a “second or subsequent conviction for a violation of an order described in paragraph (1) occurring within seven years of a prior conviction for a violation of any of those orders and involving an act of violence or ‘a credible threat’ of violence…” (emphasis supplied). In U.S. v. Acevedo-De la Cruz, 844 F.3d 1147 (9th Cir. 2017), the Ninth Circuit held that PC § 273.6(d) is a COV under a definition that is identical to 18 USC § 16(a). The court’s holding will apply to § 166(c)(4) as well. The court stated, “When interpreting other state statutes, California courts have adopted this common understanding of the word ‘violence’ in concluding that force can occur without violence, but violence cannot occur without force.” Id. at 1151. See also CALCRIM 2703, cited for both PC 166(c)(4) and 273.6(d).
Obtain 364 days or less | Assume that 273.6(d) will be held a CIMT because it requires an act or a credible threat of violence. | DV deportation ground. If D and V share a protected domestic relationship: Conviction is a COV and thus a deportable crime of DV, See INA 237(a)(2)(E)(i). It also is a deportable judicial finding of a violation of a DV stay-away order. See INA 237(a)(2)(E)(ii). | PC 273.6(d) For possible alternatives, see PC 273.6(a)-(c). For further discussion of this prong of the DV deportation ground, and of 273.6(d), see discussion at PC 166(a). Note that 273.6(d) and 166(c)(4) are nearly identical and have the same immigration analysis. | 781 |
| H&S C 11366.8 | Possess, use, or construct a false compartment for hiding, storing, transporting, or smuggling a CS in a vehicle | Assume divisible as an AF: Plead specifically to transport, store, or hide, do not plead to smuggling and do not create a vague record (e.g,, do not just track the statutory language). | Assume smuggling is a CIMT, but not not storing or transporting for personal use | Overbroad as to CS grounds because it applies to any California ‘controlled substance.’ But assume it is divisible and plead to a specific “good” substance; See discussion at 11377 Additionally, this might lead DHS to charge inadmissibility for “reason to believe” involvement in drug trafficking, especially if a large amount |
This is not a good plea, but it is better than sale or possession for sale (11351, 11352, 11378, 11379) because it can avoid an AF and the minimum conduct does not include intent to traffic. See discussion of defense strategies for drug charges in general at 11377, below. | 215 |
| PC 288.2 | Sharing, offering to share harmful matter (images) with a minor or person believed to be a minor under age 18, with intent to arouse (a)(1) depicting minors (a)(2) not depicting minors | Not AF as SAM Not AF as child pornography. By far better to avoid this issue by pleading to (a)(2). But (a)(1) also is not child pornography under Ninth Circuit precedent. See Advice | Defenders must assume it is a CIMT and seek another offense if avoiding a CIMT is critical. Removal defense advocates can argue 288.2 is not a CIMT, comparing it to 261.5(c) See Advice. | Child abuse. Not a deportable crime of child abuse because it reaches conduct where an adult poses as a child for law enforcement purposes, which the BIA held is not deportable child abuse.272Pen C § 288.2 as a crime of child abuse. It is not. The BIA held that the generic definition of a deportable crime of child abuse requires a child as the victim, not an adult posing as child. Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 794 (BIA 2020). Section 288.2 prohibits sharing harmful matter if the person “knows, should have known, or believes that another person is a minor.” See, e.g., People v. Nakai, 183 Cal. App. 4th 499 (2010) (PC 288.2 conviction where adult volunteer working with police posed online as the minor). |
For citations and further discussion of the below points, see endnote.273Pen C § 288.2(a)(2) as an AF as child pornography. Section 288.2(a)(1) prohibits showing a minor harmful materials that depict minors engaging in “sexual conduct,” with the intent to arouse. Section 288.2(b) provides that the “sexual conduct” is defined at PC 311.4(d). There are strong technical defenses that 288.2 is not an AF and perhaps not a CIMT. But best to avoid this offense, as many people do not have representation in immigration proceedings and no case directly addresses 288.2. Further, depending on the facts it could be a very strong negative factor for discretionary decisions. If a plea to 288.2 can’t be avoided, try very hard to plead to (a)(2), not depicting minors. Discretion, PSC. Even a misdemeanor may be a fatal negative factor for discretion – especially if the underlying facts are not the ideal scenario of 17-year-old and slightly older partner sharing photos they took of themselves, or even of a young person obnoxiously sending a photo, but instead are, e.g., an older person sending unwanted explicit materials. Section (a)(1) is likely to be held a particularly serious crime (PSC) that bars asylum and withholding. The BIA held that a person’s conviction for PC 311.11, possession of child pornography. was a PSC. Depending on facts, (a)(2) also might be held a PSC. See endnote, above. Alternative pleas. Options that may be better for CIMT holdings and discretion include 272, 273a(b), 370, 647.6. See also 288.3 with intent to commit 287(b)(1) (oral sex with a person under age 18). If needed, add other immigration-neutral pleas, e.g., PC 236/237, 459 1st or 2nd, or, with less than a year, PC 32 or 136.1(b)(1). AF as SAM. Should not be an AF as SAM. The Supreme Court held that PC 261.5(c), sexual intercourse between a 17-year-old and D three years older, is not SAM, noting that age 16 is the generic definition of the age of consent. See discussion of Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017) at 261.5(c). Arguably 288.2 is a less serious offense than 261.5(c): it can involve an 18-year-old sharing non-explicit images with a consenting 17-year-old in an effort to arouse. Unlike 261.5(c), it requires no physical touching and no three-year age difference. AF as Child pornography. Section 288.2(a)(2) involves a depiction of adults and is not child pornography. Section (a)(1) requires more analysis. It involves a depiction of minors engaged in “sexual conduct” as defined at PC 311.4(d). In Chavez-Solis, the Ninth Circuit held that a California child pornography statute, PC 311.11, which also defines sexual conduct under PC 311.4(d), does not meet the generic definition of child pornography because 311.4(d) includes non-explicit conduct. Because PC 288.2(a)(1) also uses the 311.4(d) definition, it too is not child pornography. See endnote; see further discussion of Chavez-Solis at 311.11. CIMT. Defenders must assume that PC 288.2 will be charged as a CIMT. The BIA held that PC 311.11 (possessing materials described in PC 311.4(d)) is a CIMT. Removal defense advocates can argue that neither 288.2(a)(1) nor (a)(2) is a CIMT, although the vagueness of the term CIMT makes the outcome difficult to predict. | 833 |
| PC 288.4 (a)(1) misdemeanor | Arranging a meeting with a minor (under age 18) or person believed to be a minor, to engage in exposure or other lewd or lascivious conduct, motivated by unnatural or abnormal sexual interest in children | Shd not be an AF as SAM because no requirement of harm to minor or that a meeting occurs, and can involve 17-year-old. | Defenders should assume it will be held a CIMT based on “unnatural or abnormal” interest, although that term might be broadly defined. | Not a deportable crime of child abuse because the offense includes officer posing as a victim.274PC 288.4 should not be held a deportable crime of child abuse. The BIA held that the generic definition of a deportable crime of child abuse requires a child as the victim, not a police officer posing as child. Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 794 (BIA 2020). Section 288.4(a)(1) includes conduct with “a person he or she believes to be a minor…” See, e.g., People v. Fromuth, 2 Cal. App. 5th 91 (2016) (conviction based on conduct with police officer posing online as a 15-year-old girl). See also PC 288.3 as an option. Adam Walsh Act. This conviction can block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act |
Assume that 288.4(a)(1) is a CIMT. Because it has exposure of just 364 days, if this is the person’s only CIMT it is not a deportable or (if sentence is 180 days or less) inadmissible CIMT conviction. Therefore it can be a relatively neutral plea for an LPR trying to avoid becoming removable. But for immigrants who must apply for discretionary relief (a group that includes all undocumented people, all deportable LPRs, and most other immigrants), the offense will be a very negative factor in discretion based on ‘abnormal’ interest. If the facts are not egregious, however, the person can attempt to explain. Note that 288.4(a)(2) and (b) are felonies based on having a prior 290(c) conviction, or actually attending the meeting. | 837 |
| PC 465 Effective 1/1/25 | Unlawful entry of a vehicle with intent to commit theft or any felony | Should not be an AF even with a year imposed (but as always, 364 days is preferred) | Should not be CIMT but plead to intent to commit “any felony” or a specific, non-CIMT felony, rather than to “theft”. | No other removal ground | PC 465 (AB 905, 2024) This 1170(h) wobbler prohibits unlawful entry of a vehicle using tools or force, with intent to commit a theft or any felony. No $950 threshold for the felony. AF. Based on caselaw on the immigration consequences of PC 459 burglary, PC 465 should not be an aggravated felony as burglary, theft, or a crime of violence even if a year or more is imposed. For further discussion of 465 as an AF, see endnote.275Pen C 465 as an AF. Even if a sentence of a year or more is imposed, unlawful entry of a vehicle should not be held an AF. This is based on caselaw analyzing the similar language at Pen C 459, burglary, under the categorical approach. See discussion at PC 459, above, and see generally ILRC, How to Use the Categorical Approach Now (2021). CIMT: Breaking and entering is a CIMT only if the intended offense is a CIMT. Based on caselaw analyzing similar language in PC 459, new PC 465 is not divisible between “theft” (a CIMT) or “any felony” (not a CIMT), or divisible as to which felony. Because the offense is overbroad and indivisible, no conviction should be found a CIMT. But best practice is to plead to entry with “intent to commit a felony,” or to commit a specific felony that is not a CIMT, e.g., PC 594, 530.5, 236. 32. For further discussion of 465 as a CIMT, see endnote. 276Pen C 465 as a CIMT. The BIA has long held that breaking and entering alone is not a CIMT, but breaking and entering with an element of intent to commit a CIMT is a CIMT. See, e.g., Matter of Z, 5 I&N Dec. 383 (BIA 1953) and Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1019 (9th Cir. 2005), abrogated on other grounds by Holder v. Martinez-Gutierrez, 566 U.S. 583 (2012). Like PC 459, new PC 465 does not have intent to commit a CIMT as an element. Section 465 penalizes unlawful entry with intent to commit “a theft or any felony,” which is nearly identical to the phrase in PC 459, intent to commit “petty or grand larceny or any felony.” The Ninth Circuit held that this phrase in PC 459 is not divisible for purposes of the intended offense, either between “larceny” and “any felony,” or as to the specific felony. See Rendon v. Holder, discussed above. “Any felony” is a category that includes non-CIMT offenses, e.g., receipt of stolen property, false imprisonment, vehicle taking, PC § 530.5, etc. Section 465 should be treated the same way. | 1085 |
| PC 496.5 Effective 1/1/25 | “Automotive property theft” Possession of property unlawfully obtained from a vehicle, with intent to sell, where “aggregate” property value exceeds $950 1170(h) wobbler | Yes, assume an AF if a year or more is imposed, as theft or receipt of stolen property. See PC 496. Seek 364 days or less, or a different offense such as attempted 459 See Advice | Yes, assume a CIMT as receipt of stolen property or theft with intent to deprive the owner “permanently or substantially,” as shown by intent to sell. See 484 for more on intent to deprive. See Advice. | No other removal grounds. | PC 496.5 (AB 905, 2024) This offense is structurally similar to, but substantively different from, PC 496.6. PC 496.5 penalizes unlawfully possessing property that D or any other person unlawfully obtained from a vehicle, with intent to sell it, if the aggregate value of the property exceeds $950. “Aggregate value” includes value of current property plus property similarly held by D within the last two years, and/or property similarly held by person/s acting in concert with D — based on proof or admission of such other conduct and valuation, and not by prior conviction. D should avoid this offense and if necessary plead to a different felony; see below. Alternatives in order to avoid an AF and CIMT: PC 496.5 can be charged even if the value of property held by D in the instant offense does not exceed $950. That may make it hard to plead instead to safer offenses like PC 459, which requires value > $950. To avoid a CIMT and an AF, offer to stipulate to 459, or to plead to felony attempted PC 459, where the intent was > $950. Or plead to misd 496 and add another felony that can take a year, e.g., PC 594, especially if there was damage to car. Or see PC 487 which as of 2025 has a similar expansion of its measure of “aggregate” value. PC 487 is a CIMT but at least is not an AF if a year or more is imposed. For DAs who are intent on obtaining convictions under the new 2025 statutes, this might be acceptable. Less favorable, plead to felony 496.5 and if more than a year is required, structure the sentence. Spend time in custody before the sentencing hearing and then waive CTS in exchange for a prospective “sentence” of felony probation and 364 days or less. See other strategies in Note: Sentence. CIMT Petty offense exception: Even a plea to a misdemeanor 496.5, or a 17(b)(3) reduction to a misdemeanor 496.5, likely destroys eligibility for the “petty offense exception” to the CIMT inadmissibility ground, if there is evidence that D did not commit just the one CIMT.277The petty offense exception to the CIMT ground of inadmissibility, INA § 212(a)(2)(A)(ii)(II), requires the CIMT conviction to have a potential sentence of a year or less, actual sentence of six months or less, and that the person has “committed” only this one CIMT. For 496.5 there must be proof or admission that D committed other similar CIMT/s within 2 years, or that D is acting in concert with another who committed at least one similar CIMT. Defense counsel should be aware that this likely destroys petty offense exception eligibility It might be possible to avoid this if there is no admission or proof that D themselves did not commit another CIMT. | 1173 |
| PC 496.6 Effective 1/1/25 | “Unlawful deprivation of a retail business opportunity” Possession of property unlawfully obtained from retail business with intent to sell, return, or exchange, where “aggregate” property value exceeds $950 1170(h) wobbler | Yes, likely an AF if a year or more is imposed. Seek 364 days or less, or a different offense. Possible defense if plead to fraud See Advice | Yes, assume a CIMT as theft/ receipt of stolen property with intent to deprive the owner “permanently or substantially,” as shown by intent to exchange or sell. See 484 for more on intent to deprive. See Advice. | No other removal grounds. | PC 496.6 (AB 2943, 2024) This offense is structurally similar to but substantively different from PC 496.5. PC 496.6 penalizes unlawfully possessing property that D or any other person obtained by “one or more acts of shoplifting, theft, or burglary from a retail business,” if D “has the intent to sell, exchange, or return” the property for value or act in concert with other/s to do so, if the “aggregate value” of the property exceeds $950. “Aggregate value” includes value of current property plus other property similarly held by D within the last two years, and/or property similarly held by person/s acting in concert with D — based on proof or admission of such other conduct and valuation, not by prior conviction. D must avoid this offense especially if a year or more will be imposed. If another plea is not, possible consider plea to 496.6 as fraud; see below. Alternative pleas to avoid an AF and CIMT: PC 496.6 can be charged even if the value of property held by D in the instant offense does not exceed $950. That may make it hard to plead instead to safer offenses like PC 459, which requires value > $950. To avoid a CIMT and an AF, offer to stipulate to 459, or to plead to felony attempted PC 459, where the intent was > $950. Or plead to misd 496 and add another felony that is not a CIMT can take a year, e.g., PC 594, especially if there was damage to the store. or 530.5 if fraud was involved and loss to victim/s was $10k or less. Or see PC 487 which as of 2025 has a similar expansion of its measure of “aggregate” value. Section 487 is a CIMT, but at least is not an AF if a year or more is imposed. For DAs who are intent on obtaining convictions under the new 2025 statutes, this might be acceptable. Less favorable, plead to felony 496.6 and if more than a year is required, structure the sentence. Spend time in custody before the sentencing hearing and then waive CTS in exchange for a prospective “sentence” of felony probation and 364 days or less. See other strategies in Note: Sentence. Possible AF Defense: Plead to Fraud. See PC 484 for discussion of AF as theft versus as fraud. If it is not possible to avoid 496.6 with a year imposed, D might avoid an AF by pleading guilty to 496.6 by committing theft by fraud to obtain the property, and intent to exchange or return the goods for value, which also is fraud. If this creates a fraud offense, and avoids receipt of stolen property, the conviction is not an AF based on a year or more sentence imposed. A fraud offense is an AF only if loss to victim/s exceeds $10,000. See INA 101(a)(43)(G), (M) and discussion at PC 484. This defense is untried and if possible the sentence imposed should be 364 days or less. D should state that they, rather than another person, obtained the goods. The offense remains a CIMT. While a plea specifically to fraud is best, removal defense advocates could argue that under the categorical approach, 496.6 is not divisible between theft and fraud offenses, and all convictions must be deemed fraud. As always with untried defenses, advocates at the same time should investigate obtaining post-conviction relief. CIMT Petty offense exception: Even a plea to a misdemeanor 496.6, or a 17(b)(3) reduction to a misdemeanor 496.6, likely destroys eligibility for the “petty offense exception” to the CIMT inadmissibility ground, if there is evidence that D did not commit just the one CIMT.278The petty offense exception to the CIMT ground of inadmissibility, INA § 212(a)(2)(A)(ii)(II), requires the CIMT conviction to have a potential sentence of a year or less, actual sentence of six months or less, and that the person has “committed” only this one CIMT. Defense counsel should be aware that 496.6 likely destroys petty offense exception eligibility because it requires proof or admission that D committed other similar CIMT/s within 2 years, or that D is acting in concert with another who committed at least one similar CIMT. It might be possible to avoid this if there is no admission or proof that D themselves did not commit another CIMT. | 1175 |
| PC 26100 (a), (b) | (a) permit other person to carry prohibited firearm in vehicle; (b) permit other person to discharge firearm from vehicle | Not an AF | Arguably not CIMT: general intent crime without an intent to harm anyone or necessarily likely to cause injury279See People v. Laster (App. 4 Dist. 1997) 52 Cal.App.4th 1450, rehearing denied, review denied. | 26100(a) may be divisible so must plead specifically to 25850 weapon to avoid a possible deportable firearms offense. 160Section (a) refers to both 25850, which includes antiques and to F&G § 2006, which presumably does not. 26100(b) refers to “any firearm” which should not be deportable. | PC 26100 Sec. (b) is a felony and could be an alternative to 246 or 246.3, since it doesn’t require a risk of injury or death. SB54: (b) is one of the few wobblers that is not an exception under SB54 and so should not be transferred to ICE. Do you want to put this as suggestion in PC 246 then? | 1655 |
California Chart (Updated September 2024)loresjoberg2025-02-13T19:23:09+00:00