December 2019 Update

December 2019 Update

This blog provides news about decisions that affect California criminal offenses, between updates of the California Quick Reference Chart.

See also the Top of the Ninth blog by Merle Kahn, which is a more in-depth analysis of a range of immigration decisions, at


In Pereida v. Barr, U.S. Supreme Court to Decide Relief Eligibility Issue the Ninth Circuit Recently Resolved Favorably in Marinelarena v. Barr: 

Whether removable immigrants convicted under divisible statutes are eligible for relief where “record of conviction” documents are inconclusive 

Summary: In Pereida v. Barr, No. 19-438 (2019), the most recent cert grant in a long line of “categorical approach” cases, the Court will decide whether a noncitizen convicted under an “overbroad” and “divisible” statute is eligible for relief from removal if the “record of conviction” documents do not conclusively indicate whether the conviction is under a relief-disqualifying prong of the statute. This case affects immigrants who cannot obtain full “records of conviction” for any one of a multitude of reasons, including that the records were destroyed, the records were never created in the first place, the needed information is simply not stated in the documents, or there are insurmountable barriers to requesting and obtaining documents from the criminal court (e.g., prohibitive fees, restricted mail and internet access for detained immigrants). In July 2019, the Ninth Circuit had issued Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc), finding that noncitizens seeking relief are eligible even where the “record of conviction” under a divisible statute is ambiguous as to whether the conviction is relief-disqualifying. 

For California defendants and Padilla advisers: This case, Pereida, will impact the viability of a defense strategy of intentionally creating ambiguity in “records of conviction” for clients pleading guilty under divisible statutes and who are trying to remain eligible for relief and admissibility. For example, the Ninth Circuit held in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), that Cal. Health & Safety Code § 11352 and related controlled substance statutes are overbroad and divisible as to the identity of the controlled substance. Under Marinelarena, an individual’s conviction under one of these statutes does not bar relief as an aggravated felony or offense relating to a controlled substance if the full “record of conviction” (a.k.a. Shepard documents) is silent as to the identity of the substance at issue in the case. If the Supreme Court reverses the Marinelarena rule, guilty pleas structured in this way will prevent individuals from satisfying the burden of proving relief eligibility.

Current Circuit split: To date, the First (Sauceda), Second (Martinez), Third (JohnsonHarve), and Ninth Circuits (Marinelarena) have found noncitizens eligible for relief on inconclusive records of conviction. The Fourth (Salem, Mondragon, Romero), Sixth (Gutierrez), Eighth (Pereida), and Tenth (GarciaLucio-Rayos) Circuits have found noncitizens ineligible for relief on inconclusive records of conviction.  

Mr. Pereida himself is an undocumented noncitizen who applied for non-LPR cancellation of removal but could not provide a “record of conviction” clarifying whether his Nebraska misdemeanor conviction under a divisible statute was for a disqualifying crime involving moral turpitude. He was thus denied the opportunity to present evidence of the exceptional and extremely unusual hardship his family would suffer if he were deported. Mr. Lucio-Rayos, whose case was denied by the Tenth Circuit, experienced the same injustice: the immigration court could not even consider the hardship to his U.S. citizen veteran wife if he were deported because the “record of conviction” from his offense under a divisible municipal ordinance for petty theft was inconclusive. Other noncitizens affected by this question have been lawful permanent residents, like the petitioner from Young v. Holder who was deported after over 30 years as green card holder because he could not demonstrate whether a California drug conviction under a divisible statute was for a relief-disqualifying aggravated felony. 

The litigation team representing Mr. Pereida and amici before the Supreme Court includes Brian Goldman (Orrick, Herrington, & Sutcliffe), Jayashri Srikantiah (Stanford Law School Immigrants’ Rights Clinic), and Manny Vargas and Nabilah Siddiquee (Immigrant Defense Project).  

California Court of Appeals (unpublished) upholds legality of Pen C § 1203.43 against challenge by Los Angeles DA, in Villegas v. Superior Court Los Angeles (B294683, Second Appellate District, Nov. 19, 2019), available at

For a discussion of Pen C § 1203.43 and how it is used, see, e.g., ILRC, N.2 Definition of Conviction (April 2019) at   

In an outlier case, Los Angeles Judge Kathleen Blanchard refused to grant a request for a Pen C § 1203.43 order for a qualifying applicant, because she found that, despite the clear language in § 1203.43, the dismissal of Mr. Villegas’ DEJ charges under former Pen C § 1000.3 meant that there was no case left to act upon. Mr. Villegas filed a mandamus motion to ask a California court of appeals to compel the judge to grant the § 1203.43 request. In response, the Los Angeles District Attorney asserted that the court should not grant the mandamus, because § 1203.43 is unconstitutional as a violation of the separation of powers doctrine.  Mr. Villegas ultimately won his case. If the legality or efficacy of § 1203.43 is challenged in any context, please contact the ILRC for support. 

The saga was: Having had the case for some months, in late August 2019 the Court of Appeals issued a “Tentative Opinion” saying that they intended to hold § 1203.43 unconstitutional, and set oral argument for Oct. 2. Hearing of the case and tentative ruling, several parties rushed to submit amicus briefs in opposition: the California Attorney General; the ILRC (by pro bono attorneys Mike Mehr and Garrick Byers, and ILRC attorney Kathy Brady), and the Los Angeles Public Defender (by Bobby Hill). Oral argument was rescheduled to the end of October on a Thursday. That Monday, the court issued a new Tentative Opinion based on the amicus briefs, reversing itself and stating it intended to find that § 1203.43 is constitutional. On Tuesday, after the new Tentative Opinion and inquiries from the Los Angeles Times and Daily Beast, the Los Angeles DA announced that it was abandoning its opposition. (See, e.g., Daily Beast story at  On Nov. 11, 2019, the court wrote the unpublished opinion cited above, upholding § 1203.43 and ordering Judge Blanchard to issue the order. 

Many thanks to everyone who jumped in to do extensive work at the last minute to defend this statute, especially pro bono attorneys Garrick Byers (who was set to do the oral argument until the other side ran away) and team leader Michael Mehr.

AG imposes restrictions on reducing an imposed sentence: Matter of Thomas and Thompson, 27 I&N Dec. 674 (AG Oct. 25, 2019) at

Bottom line: When analyzing a case,  don’t assume that a court judgment that eliminated or reduced an imposed sentence will have immigration effect – unless the order was based on some legal error in sentencing. For a more comprehensive discussion, see ILRC, Practice Advisory: AG Overturns Sentence Modification Rule: Matter of Thomas & Matter of Thompson (Oct. 31, 2019) at

Sometimes the sentence that was imposed will create an immigration problem. The most common example is that if a sentence of a year or more is imposed on certain offenses, those offenses will become an “aggravated felony” for immigration purposes.  If instead the person was sentenced to 364 days, the offense won’t be.  For example, PC 245 and VC 10851 each become an aggravated felony if and only if a sentence of a year is imposed. 

Regarding post-conviction relief: In California, Penal Code 18.5(b) provides a vehicle for a judge to reduce an imposed sentence to 364 days, without requiring legal error. Under Matter of Thomas and Thompson, section 18.5(b) will no longer have immigration effect. The exception might be that if the judge makes a written order granting the § 18.5(b) request based on a ground of legal invalidity – for example, the failure of the parties to understand that a sentence of a year would result in adverse immigration consequences. However, this might be more safely done pursuant to Pen C 1473.7 based on, e.g., the defendant’s failure to understand the immigration consequences of the original sentence.

Note: This decision is not about potential sentence. This decision affects a sentence that a judge imposed, and thereafter reduced or eliminated – often in the context of aggravated felonies. But in immigration law, crimes involving moral turpitude sometimes need a particular potential sentence. See Note: Crimes Involving Moral Turpitude at .  Even after this decision, immigration law still accepts reduction to a misdemeanor under PC 17(b)(3).  However, under another decision, the BIA held that it will only accepts that a misdemeanor has a maximum possible sentence of 364 days, as opposed to a year, if the conviction occurred on or after January 1, 2015.  Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA Oct. 4, 2018), at  See discussion in Note: Moral Turpitude, above.

AG formalizes penalties for having two DUI convictions: Matter of Castillo-Perez, 27 I&N Dec. 664 (AG Oct. 25, 2019) at  The AG held that conviction of two DUI’s during the period for which “good moral character” must be proved raises a presumption that the person cannot establish GMC. Bottom line: Immigrants applying for relief that requires good moral character, who have two DUI’s received during the period for which good moral character must be shown, are very likely to be denied the relief.  (For a more comprehensive discussion, see ILRC practice advisory on Castillo-Perez at (forthcoming 2019).)

Just a few key forms of relief require the person to establish “good moral character” (“GMC”) for a certain period before applying.  If the person can’t establish GMC, they can’t get the relief.  This includes naturalization (previous 5 years, or in some cases 3 years or reasonable time), 10-year cancellation for non-permanent residents (prior 10 years), VAWA relief for victims of abuse by USC or LPR relatives (prior 3 years).  See discussion of GMC, and also of those forms of relief, at the Relief Toolkit at

This decision means that two DUI’s received during whatever the GMC period is will create a presumption that the person can’t show GMC, and therefore relief should be denied.  A presumption can be overcome, but this decision tries to make this difficult by saying that rehabilitation after the DUI is not enough; the person must show they were of GMC even while they were getting the DUI’s.

Update: Petition for rehearing and reconsideration was denied in the case holding that Pen C § 243(d) is a crime of violence, United States v. Perez, 932 F.3d 782 (9th Cir. 2019) In July 2019, a Ninth Circuit panel decided U.S. v. Perez, a federal criminal case, and held that Pen C § 243(d) is a “crime of violence” according to a definition that’s identical to the immigration definition at 18 USC § 16(a).)  The Perez decision arguably was in error generally in its application of the categorical approach, because it ignored published California cases that specifically held that 243(d) can be accomplished by an offensive touching. But Perez is most clearly flawed because the decision is squarely based on the panel’s belief that there are no actual convictions based on an “offensive touching” that caused injury. In fact, there are.  For further discussion, see discussion at 

The update is that federal defenders supported by amici filed petition for reconsideration and rehearing, and presented these “missing” cases. However, despite this proof that the original decision was in error, the court still denied the petition in October 2019.

Immigration advocates may continue to litigate this issue. They should cite the cases that the Perez court said did not exist (see citations in the above Practice Advisory), which may persuade another panel to reach a different result. Please contact ILRC if you have a case like this. However, advocates must expect that the case will be opposed and will have to go to the Ninth Circuit. Section 243(d) also may be charged as a CIMT, because the prior holding that it is not a CIMT was based on the fact that 243(d) can be committed by an offensive touching.  

Defenders must assume that § 243(d) is a crime of violence, and that ICE will strongly argue it is a CIMT

Federal District Court enjoins DHS from using any detainers that come from the southern California detainer factory: Gonzales v ICE (CD Cal., Case No. 2:12-cv-09012-AB (FFMx)

September 27, 2019) (seedecision here).  For further information, see ILRC, Explaining the Gonzalez ICE Injunction (October 2019) at

Congratulations and thanks to NDLON, NIJC, and ACLU-So Cal, who after six years of litigation won this significant court order.  For a more comprehensive discussion, see To summarize, the order finds that ICE violates the Fourth Amendment by:

  1. Issuing detainers based solely on electronic database information—where there is no removal order, no ongoing proceedings, and no prior interview—because the Court found that the databases relied upon are too error-ridden and incomplete to be reliable sources of information for probable cause determinations.  
  2. Issuing detainers to states where no state statute expressly authorizes state and local law enforcement to make civil immigration arrests on detainers.

There is a lot to discuss, as DHS reacts to the ruling and parties debate the terms. The injunction against detainers issued solely on the basis of database checks applies to all detainers issued out of the Central District of California. That includes an ICE center known as the PERC (a Secure Communities hub, formerly known as the “Southern California Secure Communities Support Center”) that issues detainers within California 24 hours/day and to 41 other states after-hours (every state except Alaska, Washington, Oregon, Arizona, New Mexico, Colorado, Oklahoma, and Florida). The implications of the holding, however, reach far beyond the injunction itself, since all ICE offices use these same inconclusive databases to issue detainers.

The below information is covered in the August 2019 edition of the California Chart, and/or in the cited Practice Advisories.

Ninth Circuit defers and holds that any evidence can be used to prove that a court’s finding of violation of an order actually is a deportable finding of a violation of a DV stay-away order: Diaz-Quirazco v. Barr, 931 F.3d 830 (9th Cir. 2019), withdrawing from contrary statements in, e.g., Alanis-Alvarado v. Holder, 558 F.3d 833, 835, 839-40 (9th Cir. 2009).

Courts have held that a finding of violation of a DV “stay away” order based on minor conduct, including walking a child up the driveway after visitation rather than leaving him at the curb, will suffice to trigger deportability. See Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009), Matter of Strydom, 25 I&N Dec. 507 (BIA 2011). They emphasize that the test is violating the portion of the order violated was intended to protect against threat, injury, or repeat harassment –not whether the conduct itself involved threat or harassment.

Immigration authorities can use any probative evidence, including from outside the record of conviction, to establish that a court’s finding of violation of an order is actually a finding of a DV stay-away order (or other portion of a DV order that “involves protection against credible threats of violence, repeated harassment, or bodily injury”). The Ninth Circuit earlier had held that this was controlled by the categorical approach applies to this inquiry and that Pen C 273.6 was a divisible statute. Later it then decided to defer to the BIA’s finding that the categorical approach does not apply to the part of the deportation ground based on violation of an order (8 USC 1227(a(2)(E)(ii), as opposed to (E)(i)), since this part of the ground involves both civil and criminal findings. See Diaz-Quirazco v. Barr, supra.

Therefore, defense counsel should not rely on a vague record of conviction under Pen C §§  166 or 273.6 to protect the defendant. Do not plead to any DV stay-away violation. One can plead to violating a part of the DV order that would not cause deportability, such, as e.g., conduct relating to custody, visits, child support, or failure to attend classes. Or, plead to a new, non-deportable offense with an ROC sanitized of the PO. If pleading to a new offense, it is optimal to identify a victim not listed in the order (e.g., the new boyfriend, the neighbor), although this might not be necessary.

Big win! Ninth Circuit reverses Young rule on burden of proof in Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. July 18, 2019) (en banc). 

Marinelarena is a great win for our side. It protects noncitizens who are must apply for immigration relief – for example, undocumented people, or permanent residents who are deportable – and who were convicted under a “divisible” statute, if their record of conviction is vague as to which crime under the statute they were convicted of.  This is especially useful for California drug offenses.

Example: Sections 11377-11379 and 11350-52 have been held to be “divisible” statutes as to the substance involved. These California statutes reach some controlled substances that also appear on federal drug schedules, and so are a controlled substance offense for immigration purposes (e.g., meth), and other substances that don’t appear on federal schedules, and so are not a controlled substance offense for immigration purposes (e.g., chorionic gonadotropin).

Note that a plea to §§ 11377-79 is a far better choice to than §§ 11350-52 for purposes of this defense, although the Ninth Circuit repeatedly has upheld both.

Ana, an undocumented person, needs to apply for non-LPR cancellation. She was convicted of drug possession under § 11377. If Ana’s entire record of conviction only refers to “a controlled substance” — as opposed to, e.g., “meth” – then under Marinelarena, in immigration proceedings she does not have a controlled substance conviction that will bar eligibility for relief.  She can apply for non-LPR cancellation. Before Marinelarena, she would have been ineligible.

Other common divisible statutes are H&S C §§ 11379, 11352, which are divisible between “offering” to sell or distribute (not an aggravated felony within the Ninth Circuit) and sale or distribution (an aggravated felony). Defenders always should plead specifically to “offering,” but if this was not done in a prior case and instead the plea was to all of those verbs, the person can benefit from Marinelarena.

CAUTION:  We must conservatively assume that Marinelarena will go to the Supreme Court, due to a circuit split. This decision is great, but we must confront the possibility that the Court would reverse it.

Immigration advocates: We can use Marinelarena immediately and should seek final case decisions as soon as possible. Marinelarena also might be a basis for motion to reopen. But we need to have a strategy in mind in case the Supreme Court overrules it someday – even as early as next spring.

Criminal defenders: We still recommend that defenders do everything possible to get specific good pleas, rather than creating a vague record of conviction, for two reasons. First, it is possible that Marinelarena would be overturned by the Supreme Court.  Second, your client might come before an immigration judge who does not know about Marinelarena, or who is in another circuit that does not follow it. Push back against prosecutors who, if they come to understand Marinelarena, might assert that a vague record is “good enough” in every case. Please contact ILRC if you’d like help with this. 

But for now, it is extremely worthwhile to get a vague record of conviction if that is all that can be obtained, including for undocumented clients. When you evaluate prior convictions with vague records, remember that these may be good.

Divisible statutes: For more information about the categorical approach and divisible statutes, see ILRC, How to Use the Categorical Approach Now at

Pen C § 314 is a crime involving moral turpitude.  Betansos v. Barr (9th Cir. July 5, 2019). The Ninth Circuit and BIA had disagreed on this point, and the Ninth Circuit decided to defer to the BIA and withdraw its prior decision.

Ninth Circuit finds that Pen C § 4573.6 is not a controlled substance offense in United States v. Graves, 925 F.3d 1036 (9th Cir. May 30, 2019). Both Pen C §§ 4573.6 and 4573 prohibit conduct involving California controlled substances within a jail or similar arena. The Ninth Circuit held that no conviction under PC 4573.6 is an offense relating to a federally-defined controlled substance (CS)., Therefore no conviction is a CS offense for immigration purposes, and 4573.6 is much better than 4573.  But Graves does provide arguments that 4573 also is not a CS, which will be addressed in the upcoming July edition of the California Chart. Defenders should plead to Pen C §§ 4573.6, or even better §§ 4573.5 or 4573.8, which involve alcohol and non-controlled substances, rather than to § 4573, wherever possible.

The below information is covered in May 2019 edition of the California Chart, and/or in the cited Practice Advisories.

USCIS cracks down on “legal” use of marijuana in USCIS Policy Manual.  This does not appear in the chart. On April 19, 2019, USCIS announced that it had updated its national Policy Manual to emphasize that even in states where this conduct is legal, immigrants can be penalized for admitting use of recreational or medical marijuana, or employment in the legitimate cannabis industry.  See amended USCIS Policy Manual, Volume 12, Chapter 5, Part C.2, at and announcement of the update at US USCIS, Policy Alert: Controlled Substance-Related Activity and Good Moral Character Determinations (April 19, 2019) at .

The issue is that while marijuana is partially legalized in the majority of states, it remains a federally defined controlled substance. Admission of conduct, or employment in the industry, can make a noncitizen inadmissible and also ineligible to establish good moral character (one of the requirements for naturalization as well as non-LPR cancellation and other forms of relief.

Warn defendants who may have used marijuana to get counseling from immigration agencies before leaving the United States, submitting any applications to DHS, or talking with immigration officials.  Or, hand out community flyers available online.  For advocacy materials including community alert flyers in English, Spanish, and Chinese, a legal memo entitled Practice Advisory: Immigration Risks of Legalized Marijuana (January 2018), and other materials, go to

Supreme Court reverses Preap: Mandatory detention applies even if the person did not go directly to ICE from jailImmigration law provides that certain noncitizens will be detained without possibility of bond. This includes most people who are deportable for crimes (were admitted to the U.S. and come within the crimes deportation grounds, with some exceptions) or inadmissible for crimes (were not admitted to the U.S. and come within the crimes inadmissibility grounds). INA 236(c)(1), 8 USC 1226(c)(1).  This does not appear in the chart but see below advisory.

The Ninth Circuit had held that based on the language of the statute, mandatory detention only applied if the noncitizen was taken directly to ICE custody from criminal custody that was based on conviction of one of the triggering offenses.  This meant that many people, including people with old deportable or inadmissible convictions, were not subject to mandatory detention.  The Supreme Court reversed the Ninth Circuit and thus broadly extended who is subject to mandatory detention.  See Nielsen v. Preap (March 19, 2019) at  

For more on mandatory detention, see ILRC, Practice Advisory: How to Avoid Mandatory Detention (May 2018) at .  This advisory will be updated soon to reflect the Supreme Court decision in Preap and other developments in mandatory detention litigation.

Ninth Circuit reaffirmed that sentencing enhancements are counted as part of the total sentence imposed. It found that a non-citizen who had been sentenced to four years for a PC § 273.5 conviction, plus an additional one-year enhancement for use of a deadly weapon under PC § 12022.5(b)(1), had been sentenced to a total of five years for an aggravated felony, which made the conviction a per se “particularly serious crime.” See Mairena v. Barr (Mar. 7, 2019) at

Ninth Circuit adopted a narrower interpretation of “single scheme of criminal conductin the context of multiple crimes involving moral turpitude, granting Chevron deference to BIA decisions on the issue.  It found that a non-citizen did not qualify for the single scheme exception when over the course of some hours he forced the victims to commit sexual acts, because these were “complete, individual, and distinct crimes.” See Szonyi v. Whitaker (Feb. 13, 2019), and see Judge Fisher’s dissent, at  

­­­­Ninth Circuit held that the term “crime involving moral turpitude” is not unconstitutionally vague, as per Supreme Court precedent. The concurring opinion by Judge William Fletcher strongly suggested that the Supreme Court should revisit the issue in light of the lack of any “coherent criteria” for determining when a non-fraud offense would be deemed a CIMT. See Islas v. Veloz (Feb. 4, 2019) at

The Ninth Circuit withdrew its decision in Lorenzo v. Sessions, which had held that the California definition of methamphetamine is broader than the federal definition and therefore a conviction under H&S C § 11378 involving meth is not a controlled substance offense.  The court issued an unpublished decision with the same result, but this will give ICE the opportunity to argue against the chemical analysis underlying Lorenzo. This makes a plea to meth even less secure. For the published opinion withdrawing Lorenzo v. Sessions, see  For the unpublished opinion reaffirming that Mr. Lorenzo is not deportable under the controlled substance ground due to how meth is defined, see  For the ILRC advisory on the Lorenzo withdrawal, see .

The Supreme Court again addressed the definition of a crime of violence (COV) in Stokeling v. United States, 139 S.Ct. 544 (2019). It found that a Florida robbery offense is a COV because it requires overcoming the will of the victim, even by minimal force. The Court affirmed that a battery with an offensive touching is not a COR.  Stokeling might result in DHS charging that Pen C §§ 207(a) or 236/237 by violence is a crime of violence. For more information, see ILRC, Stokeling v. United States: Supreme Court Defines Crime of Violence (January 2019) at

A nationwide Temporary Restraining Order enjoins the Trump Administration from restricting asylum grants only to those who enter the U.S. at a port of entry.  See East Bay Sanctuary Covenant et al v Trump et al (N.D. Cal Nov. 19, 2018) at

Ninth Circuit upheld a district court’s nationwide Temporary Restraining Order that requires DHS to continue to accept DACA renewal applications.  Regents of the Univ. of Cal. v. United States Dep’t of Homeland Sec., 908 F.3d 476, 485 (9th Cir. 2018). For more information, see

The federal government is enjoined from terminating temporary protected status for Sudan, Haiti, El Salvador, and Nicaragua. Beneficiaries retain lawful status and valid employment authorization documents during the pendency of the proceedings. Ramos v. Nielsen, No. 18-cv-01554-EMC (N.D. Cal. Oct. 3, 2018) See

California robbery, Pen C § 211, is an AF as theft, but not as a crime of violence, if a sentence of a year is imposed. Matter of Delgado, 27 I&N Dec. 100 (BIA 2017) (is an AF as theft), US v. Garcia-Lopez (9th Cir. September 2018) (it is not an AF as a crime of violence under 18 USC § 16(a) because it can be force applied by accident).  But regarding robbery as a crime of violence, see Stokeling, above.Nevada drugs are not federal “controlled substances.”  Because the Nevada controlled substance schedule is overbroad and indivisible, no conviction that references that schedule is a controlled substance offense for immigration purposes. Villavicencio v. Sessions, No. 13-74324 (9th Cir. Sept. 11, 2018).

2020-02-11T23:30:47+00:00Updated February 11th, 2020|