California Chart

(a) Forge prescription for any drug (b) Possess any drug obtained by forged prescription

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 held a deportable or inadmissible CS offense. The term “drug” is overbroad because it includes non-controlled substances (CS), and is not a divisible term. See 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 yr 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

Contractor without a license

Not AF

Should not be a CIMT because it’s a regulatory offense

No

See endnote to § 25658 regarding regulatory offenses and CIMTs.

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.

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.”

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.

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 4342. If that is not possible, possession H&S 11377 plus other distinct offense such as 529(a)(3), 530.5(a), PC 32, or if necessary forgery, fraud.

Possess controlled substance

Generally not an AF, but see Advice.

Not a CIMT.

Deportable and inadmissible CS offense, except see Advice regarding non-federal substance defenses. Arguably California heroin is a non-federal substance, because it is defined differently than heroin on the federal schedule.³This argument is similar to the Lorenzo line of cases that initially found that California methamphetamines are not a federal substance – except that the heroin argument appears to be stronger. It appears that heroin under California law has the same textual overbreadth as meth did: the California statutory schedule specifically includes geometrical isomers of heroin, but the federal schedule does not. The Ninth Circuit ultimately rejected this defense for meth after a district court held an evidentiary hearing and concluded that the meth geometric isomer does not exist.  See U.S. v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020), discussed at Advice to H&S 11377. However, it appears that a geometrical isomer of heroin—“isoheroin”—does exist. ILRC will post an expert declaration on this when it becomes available. Many thanks to the Federal Defenders for spotting this issue.

See 11377 for a discussion of various defenses.

AF: Possession of a CS is not an AF unless (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.

Non-federal substance defenses. The Ninth Circuit has found that non-federal controlled substance defenses apply to 11350-52, but whenever possible, 11377-79 is a better vehicle than 11350-52 for this defense. See discussion of the defenses at 11377.

See also § N.8 Controlled Substance.

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.
See Advice and see 11378

CIMT, like any trafficking offense.

Deportable and inadmissible CS offense unless a non-federal substance defense applies. See Advice.
Also inadmissible because gov’t has “reason to believe” trafficking.
See further discussion at 11378.

Very bad immigration plea. Pleading down to 11350 or up to 11352 (offering to distribute or even to sell) is far better. Recommending a plea to 11351 without advising about the advantage of pleading up to “offering” under 11352 is ineffective assistance of counsel.⁴See 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).

The “non-federal substance” defenses, including the “unspecified controlled substance” defense, may apply here. Please see Advice at 11350, and a more comprehensive discussion and instructions at 11377. Whenever possible, 11377-79 is a better vehicle for this defense than 11350-11352. Even with that defense, plead to 11350 or 11352 (offering) rather than 11351. Consider post-conviction relief for priors.
See further discussion at 11378 and see § N.8 Controlled Substance.

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 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.

-Sell, give away, or transport for sale (1/1/14) or personal use (pre-1/1/14)
-Offer to do the above

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.
See 11379

CIMT, except for pre-1/1/14 transport.
See 11379

Deportable and inadmissible for CS conviction, and in some cases inadmissible for reason to believe trafficking. See Advice for the non-federal substance defense.

If you must plead to 11352, prevent an AF for immigration proceedings in the Ninth Cir by pleading to “offer to” distribute (or offer to sell). If the ROC identifies a federally defined substance, the plea will be a drug conviction for immigration purposes, but not a drug AF, in proceedings held within the Ninth Cir only.

The “non-federal controlled substance” defenses apply here. See Advice at 11350, and a more comprehensive discussion and instructions at 11377. Whenever possible, however, 11377-79 is a better vehicle for this defense than 11350-11352.

Plants, cultivates, harvests, dries, etc. cannabis plants
Ranges from an infraction (age 18-20, six plants or less) to felony depending on priors and conduct.

This is a bad plea but see Advice for options.
Even growing for personal use has been held an AF as an analogue to a federal manufacturing felony.⁵See United States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008).
See Advice and see § N.8 Controlled Substance.

Not CIMT because no intent to sell or distribute.
(But if any of the included water offenses could be deemed theft, a plea to that might be a CIMT.)

Yes, deportable and inadmissible for CS conviction, but see Advice.
Inadmissible for reason to believe trafficking. Warn D that if imm authorities find strong evidence of intent to sell, D could be charged with being inadmissible because they have “reason to believe” D participated in trafficking. This ground bars almost all relief and might extend to juvenile conduct. See 11379.

Avoid this plea. While Prop 64 changed parts of 11358, a conviction from before or after Prop 64 will be charged as an AF. But see:

Argument. See Advice at current 11357(a)(2) for an argument that California cannabis is not a controlled substance for any imm purpose, 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.

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.⁶Immigration advocates may contest this. See, e.g., Yi, “Arguing that a California Infraction is not a Conviction” at www.ilrc.org/resources/arguing-that-a-california-infraction-is-not-a-conviction-test-for-non-misdemeanor-offenses. As always, advocates should pursue post-conviction relief at the same time in case the argument fails. However, there are reports that immigration officials have treated infractions as a conviction, and some unpublished Ninth Circuit decisions have held that it is a conviction. See, e.g., Heredia v Sessions (9th Cir 2017) 720 Fed Appx 376. 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), 594, water offense, 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. Some people who work as laborers unlawfully growing mj, or in other unlawful work (mules, sex workers, etc.), are victims of human trafficking and working under duress. This could support a criminal defense; a vehicle to obtain post-conviction relief; and/or a pathway to lawful immigration status. They may be afraid to admit they are victims. See endnote for information and free resources to assist in representing possible victims of human trafficking.⁷Victims of trafficking. California has passed laws to protect criminal defendants who are victims of human trafficking and may have committed crimes under duress. These people might be eligible for immigration status as well. See resources at the end of this endnote.

Proving that the defendant is a trafficking victim is a defense to many types of charges, including drug offenses. See Pen C § 236.23. Even if one cannot win a full § 236.23 defense, one might be able to obtain an immigration-neutral plea. For example, a group of undocumented Chinese defendants who had worked in a marijuana grow house were charged with H&S C §§ 11358 and 11359, which are “aggravated felonies” even after Prop 64. By showing evidence that they were likely victims of trafficking, their public defenders were able to negotiate pleas to misdemeanor Pen C § 32, accessory after the fact, a far better plea for a noncitizen.

California also provides a vehicle to obtain post-conviction relief to erase a prior conviction if the conduct was due to being a trafficking victim. See Pen C § 236.14. To make sure that the post-conviction relief will be given effect in immigration proceedings, the Pen C § 236.14 order should set out a legal error in the case that goes beyond the elements of § 236.14, for example that the plea was in error because the person did not willfully commit the offense, or the client entered the plea under duress due to fear of the trafficker, or the defense did not offer complete advice because they were unaware of the trafficking. Draft the order for the judge and consult a post-conviction relief expert if needed. Or, consider Pen C § 1473.7.

In some cases, the defendant may be eligible for a “T” visa for trafficking victims. See 8 USC § 1101(a)(43)(T). In this process, one first applies for a temporary, non-immigrant visa called a T visa, and later for lawful permanent residence (a green card). It is possible that the person’s spouse and children can obtain status as well. Some nonprofit agencies are expert in obtaining this and can offer free help to the defendant.

CAST (Coalition to Abolish Slavery and Trafficking) in Los Angeles is an excellent resource. See www.castla.org. They offer free technical assistance on cases to California criminal defenders, immigration advocates, and others, as well as free training. They may refer you to nonprofits in your area that could take the person’s immigration case. For written information, see the brief summary of T visas in § N.17 Immigration Relief Toolkit and see materials at https://www.ilrc.org/u-visa-t-visa-vawa, which also has links to webinars and manuals.

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.⁸See 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).

See § N.8 Controlled Substance.

Unlawfully sell, import, give away, administer, or (since 1/1/16) transport marijuana for sale
Or
Offer to do these things

Divisible.
Never AF: Give away or offer to give away mj under (a) or (b). See Advice for (a).
Pre-1/1/16 transport, because minimum conduct is personal use
Offering: Offering to commit 11360 offense is not an AF, but only in imm proceedings arising in the Ninth Circuit. See 11379. Here, a prior conviction for, e.g., offering to sell is not an AF.
Yes AF: Sell, post-1/1/16 transport

CIMT: Sale, transport for sale, offering to do these is a CIMT.
Conservatively assume giving away for free is a CIMT.
Transport based on pre-1/1/16 conduct should not be a CIMT because the minimum conduct is transport for personal use

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.⁹Not 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).

In Moncrieffe the Supreme Court held that the categorical approach applies to this category. Thus, where a Georgia statute punished a range of conduct including giving away a large or small amount of marijuana, the Court looked to the minimum conduct required for guilt. Because the minimum conduct included giving away a small amount of marijuana, and the statute was indivisible, no conviction under the statute was an aggravated felony as a matter of law, regardless of information in the record and regardless of whether the issue was deportability, inadmissibility, or eligibility for relief. The result was that the conviction made Mr. Moncrieffe deportable under the controlled substance ground, but it was not an aggravated felony that barred him from applying for LPR cancellation.

Defenders should be sure to plead specifically to giving away (or ideally to offering to give away), as opposed to sale or a vague record, as this offense held divisible between the types of conduct. See U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc) (H&S C § 11352 is divisible). “Offering to” provides an additional defense option within the Ninth Circuit, just in case ICE asserts that 11360(b) offense does not come within a “small amount.”

The Supreme Court declined to rule on what a “small amount” is, but it noted that the BIA “has suggested that 30 grams ‘serve[s] as a useful guidepost…’” Moncrieffe, 569 U.S. at 194, n. 7, citing Matter of Castro-Rodriguez, 25 I&N Dec. 698. 703 (BIA 2012). A conviction for giving away marijuana under the current § 11360 fits within this guidepost. The infraction at § 11360(b), giving away 28.5 grams, comes within the exception. The misdemeanor at § 11360(a), giving away another amount, also does, because it includes a minimum conduct of giving away 29 or 30 grams. Despite this clear law, we ask defenders where possible to plead to § 11360(a) specifically to 29 or 30 grams, or to otherwise note it in the record, because the defendant may be unrepresented and an immigration officer or judge might in error look to the record, in violation of the rule set out in Moncrieffe.

Lujan-Armendariz. Some older convictions for giving away a small amount of marijuana may qualify for a second key immigration benefit. A conviction for possession or possession of paraphernalia (but not use), or for giving away a small amount of marijuana, from on or before July 14, 2011 can be eliminated for immigration purposes by any “rehabilitative relief” (e.g., withdrawal of plea or dismissal of charges under Pen C § 1203.4, Prop 36, or the former DEJ even absent Pen C § 1203.43). This applies only in immigration proceedings held within the Ninth Circuit. The conviction can be from any jurisdiction, including another country. The person must not have violated probation imposed for the offense or received a prior pre-trial diversion (although these limits might not apply to defendants who committed the offense while under age 21).

Example: In 2010, John was convicted of giving away marijuana under H&S C § 11360. He completed probation without problems, and he had not had a prior pre-trial diversion. In 2015, he expunged the conviction under Pen C § 1203.4. John does not have a CS conviction for any immigration purpose, as long as immigration proceedings are held in the Ninth Circuit.

See Lujan-Armendariz v. INS, 22 F.3d 728 (9th Cir. 2000) (if a state offense would have been amenable to the Federal First Offender Act, 18 USC § 3607, had the case been held in federal court, then state rehabilitative relief will eliminate the conviction) and Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc) (ending the Lujan-Armendariz benefit for state convictions received after July 14, 2011). For more information see “Practice Advisory: Lujan and Nunez” at www.ilrc.org/resources/practice-advisory-lujan-nunez-july-14-2011. A specific plea to giving away or offering to give away (do not leave the ROC vague) has two advantages:

1. It is not an AF. Giving away under 11360(b) is best, but (a) also qualifies because the minimum conduct involves giving away 29 or 30 gm. In case imm authorities don’t know to apply the minimum conduct test, the best practice under (a) is specific plea to 29 grams; but if this was not done in a prior, it still is not an AF under Supreme Court precedent.
2. A conviction from before 7/15/11 to giving away a small amount of mj may be eliminated for imm purposes by DEJ, Prop 36, or 1203.4, under Lujan.

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.

Possess drug paraphernalia

Not AF.
(Sale of drug paraphernalia may be AF, however.)

Not CIMT

Deportable and inadmissible CS conviction. Consider B&P C 4140 instead.
A non-federal controlled substance defense may help, but a better plea for that defense is to H&S C 11377. See discussion at 11377.

1. Try hard to plead to a non-drug offense. Even the most minor drug offense can have catastrophic immigration effect. See Advice to 11377 and see § N.8 Controlled Substance. See also B&P C 4140, possession of syringe.

2. Take PC 1000 pretrial diversion if D can complete it.

3. 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 ¹⁰Matter 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.

4. 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

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.

Open, maintain, manage place where drugs are sold, distributed, used

11366 is AF as a federal analogue.¹¹Section 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).
Assume 11366.5 also is an AF but see Advice. 11379 is a far better plea to avoid an AF.

Yes CIMT, except managing a place where drugs are used might not be.

Inadmissible and deportable CS.
See Advice and see 11377 regarding the unspecified controlled substance defense.

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.

Forged prescription to obtain narcotic drug

Assume AF as federal drug analogue but see Advice re possession.
See B&P C 4342
Get 364 days or less to avoid an AF as forgery.
See Advice.

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.

Possess CS while armed with firearm

Not AF (no federal analogue)

Arguably not a CIMT; see Advice

Yes, deportable and inadmissible CS offense.
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.

Firearm. Comes within antique firearm exception; see PC 29800(a). But it may be a bar to DACA. See PC 25400.

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 non-federal substance defenses. But even with such a defense, by far the best course is to plead down to 11377 or even up to 11379.
If a non-drug offense or 11377 is not possible, a noncitizen likely will want to plead up to 11379 offer to give away (or if necessary, offer to sell), which is not an AF in immigration proceedings arising within the Ninth Circuit only. 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 can be 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.¹²See 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.

Yes CIMT. Note that the non-federal substance defenses do not prevent a CIMT. See 11377, Part d.

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, not 11378, or better yet, to plead to a non-drug offense.
Yes, inadmissible for reason to believe. Because evidence from outside the ROC can be used, this may apply even to a conviction protected by a non-federal substance defense; see 11379.

Refugee and Asylees: Trafficking is a ‘particularly serious crime,’ very bad for asylees and refugees. See 11379 and see § N.17 Immigration Relief Toolkit.

Victims of human trafficking. If the defendant may be a victim who is working under duress, see discussion at Advice to H&S C 11358.

Sell, give away, transport for sale (1/1/14 statute), transport for personal use (pre-1/1/14 statute)—OR—offering to do such conduct, with any of several controlled substances (CS) that are defined by California statute

AF: Divisible. Note that 11352 and 11379 are divisible in two ways: the verb and the substance. Regarding the verb, always plead specifically to “offering” to commit the offense. This will avoid an aggravated felony for all immigration purposes, although only in imm proceedings arising within the Ninth Circuit. Regarding the substance, try to negotiate a “non-federal substance” defense, discussed above. Note that in 2020, the Supreme Court will consider whether an inconclusive record of conviction will protect persons applying for relief. See discussion at 11377, parts a and b, above.
This section discusses the immigration effect of the various verbs in 11352/11379. It assumes that a federal substance defense does not apply.
“Offering” as an AF depends on the jurisdiction: Offering to commit an 11352/11379 offense is not an AF, but only in immigration proceedings arising in the Ninth Circuit. Plead specifically to “offering” to give away (or if needed, sell or transport); do not create a vague record on the verb, as this is a divisible statute per US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc). If the person is placed in removal proceedings outside the Ninth Circuit, offering will be an AF.
Yes AF: Sell, give away, post-1/1/14 transport
Not AF: Pre-1/1/14 transport is not an AF, because minimum conduct is personal use. This should apply nationally.
Again: An 11351-52 or 11378-79 conviction is not an AF or controlled substance offense to the extent that one of the non-federal substance defenses applies to your client. See discussion at 11377.

CIMT: Sale, transport for sale, offering to do these is a CIMT. The BIA held that giving away for free is a CIMT, although imm 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.

Other removal grounds. Yes, deportable and inadmissible CS, unless a non-federal substance defense applies to your client. See discussion at 11377.

Inadmissible if gov’t has “reason to believe” person participated in trafficking. This is a fact-based removal ground that is not restricted to the ROC and does not require a conviction, so defenders can only do so much. Plea to unspecified CS may not prevent this if there is substantial evidence that federal CS was involved. A plea to offering to give away rather than sale is best.

This 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.

Alternative pleas: See also H&S C 11391, 25189.5, PC 32, 136.1(b)(1), 460, etc. See B&P C 4140, 4141 (possession, sale of syringe)

Victims of human trafficking. If the defendant may be a victim who is working under duress, see discussion at Advice to 11358.

Sell, Give away, Transport for sale (1/1/16 statute), Transport for personal use (pre-1/1/16 statute) PCP, etc.
or
Offer to do any of above

Divisible:
Offering: Offering 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
Not AF: Pre-1/1/16 transport

Sale, transport for sale, offering to do these is a CIMT. Conservatively assume giving away for free is a CIMT.
Transport based on pre-1/1/16 conduct should not be a CIMT because the minimum conduct is for personal use

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.)

Cultivate (11390) or
Transport, sell, give away, or offer to do this (11391)
Certain spores that produce mushrooms
See Advice.

Offering is not an AF in the Ninth Circuit, and pre-1/1/16 transport is not an AF. See 11379.
But arguably no offense is, because not a federally defined substance. See Advice.

Sale, transport for sale, offering to do these is CIMT.
Conservatively assume giving away for free is a CIMT.
Cultivation, and transport based on pre-1/1/16 conduct, should not be a CIMT because the minimum conduct is for personal use.

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.

Under the influence of a controlled substance (CS)

Not AF, even with a drug prior.
See generally § N.8 Controlled Substance

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. See discussion at 11377.

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).

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

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.

Accessory after the fact

Get 364 days or less on any single count to avoid a possible AF as obstruction of justice, but see Advice re Ninth Circuit opinion.

See § N.4 Sentence for suggestions on how to avoid one year while accepting significant custody time.

Never a CIMT per Ninth Cir, but 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).

Because of this conflict between the BIA and the Ninth Circuit, criminal defenders should try to act conservatively and follow the BIA’s rule: identify in the record a specific non-CIMT that the principal committed, or at least keep the record vague as to the principal’s offense.

Immigration advocates will point out that the BIA’s opinion in Rivens is not controlling in cases arising within the Ninth Circuit, and within the Ninth Circuit no conviction of Pen C § 32 is a CIMT regardless of the principal’s offense. Note that in Rivens the BIA acknowledged that Navarro-Lopez holds that Pen C § 32 never is a CIMT, and specifically did not rule on how it would treat cases within the Ninth Circuit. Id. at 629. (Even if the BIA ever holds otherwise, the Ninth Circuit then will have to decide whether or not to defer to the BIA and withdraw Navarro-Lopez). In addition, immigration advocates can investigate arguments that § 32 is not “divisible” as to the principal’s felony, on the grounds that a jury is not required to agree unanimously in every case as to which felony the principal committed. As always with unproved arguments, counsel should consider other defense strategies, including obtaining post-conviction relief, at the same time. Immigration advocates should also be aware of the discussion of the similar offense misprision of felony. See Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), holding that this is never a CIMT and declining to follow Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006), which held that misprision always is a CIMT. The BIA declined to apply the Ninth Circuit’s Robles-Urrea decision outside of the Ninth Circuit, in Matter of Mendez 27 I&N Dec. 219 (BIA 2018).

(Note that Navarro-Lopez, supra, was overruled on other grounds (regarding the application of the categorical approach), but that decision was in turn overruled by the Supreme Court. See Descamps v. United States, 570 U.S. 254 (2013), overruling U.S. v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). Navarro-Lopez also was partially overruled along with several other cases, to the extent that they relied on prior precedent regarding Pen C § 245. See Ceron v. Holder, 747 F.3d 773, 782 (9th Cir. 2014) (en banc).)

So best practice where possible is to name in the ROC a specific non-CIMT committed by the principal. See Advice for suggestions.

Imm advocates should cite Ninth Cir law that PC 32 is never a CIMT, regardless of the principal’s offense. See above endnote.

No other removal ground.

PC 32 is excellent plea to avoid a conviction relating to CS, DV, violence, firearms, AFs (other than maybe obstruction) 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 try to get 364 days or less to avoid a possible AF.

AF. This analysis also is relevant to PC 69, 136.1(b)(1), 148, VC 10851, and any offense that could reach avoiding, or helping a perpetrator to avoid, an initial arrest. See endnote¹⁷Pen §32 as the AF Obstruction of Justice. An offense that meets the generic definition of “an offense relating to 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). The Ninth Circuit and the BIA have set out conflicting generic definitions of obstruction of justice, which has led the BIA to find that PC 32 is obstruction and the Ninth Circuit to find that it is not. See history of the decisions in Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1056-58 (9th Cir. 2020) (“Valenzuela Gallardo II”). In August 2020, the Ninth Circuit published Valenzuela Gallardo II and definitively rejected the BIA’s definition. However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less on PC 32 (see alternative pleas in PC 32 Advice on the chart); for immigration advocates to wait to file affirmative applications based on this holding, at the least until the Ninth Circuit rules on the petition for rehearing; and of course for advocates in removal proceedings to aggressively assert Valenzuela Gallardo II.

Even if the Valenzuela Gallardo II were to be overruled en banc and the BIA’s definition were to be upheld, counsel can assert that the BIA definition cannot be applied to convictions from before Sept. 11, 2018, which was the date the BIA set out this definition in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018). The BIA held that this definition can be applied retroactively, and that question also is pending on appeal to the Ninth Circuit. Matter of Cordero-Garcia, 27 I&N Dec. 652, 657-663 (BIA 2019) (PC 136.1(b)(1) is obstruction because an investigation or proceeding is reasonably foreseeable, and the BIA definition applies retroactively to convictions from before 9/1/2018).

The substantive issue is whether the generic definition of obstruction requires interference with an already existing proceeding or investigation. If it does require this, as the Ninth Circuit asserts, then PC 32 is not obstruction because it includes, e.g., helping the person avoid an initial arrest before any proceeding or investigation has started. If it does not require an existing proceeding, but only a “reasonably foreseeable” one, as the BIA asserts, then PC 32 is obstruction and is an AF if a year or more is imposed.

The BIA’s most recent generic definition of obstruction is “crimes involving (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere with an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant.” Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018) (emphasis altered and internal quotation marks omitted).

The Ninth Circuit rejected this definition. “The precise question at issue in this case is whether an offense relating to obstruction of justice under § 1101(a)(43)(S) requires a nexus to an ongoing or pending proceeding or investigation. We conclude that Congress has clearly answered this question in the affirmative.” Valenzuela Gallardo II at 1062.

A larger issue in the case, which eventually must be addressed in an en banc decision, is whether federal courts in general should give Chevron deference to the BIA’s generic definition of an aggravated felony, given that the aggravated felony category has “dual application” in both immigration and federal criminal proceedings (where it is a basis for sentence enhancement). Valenzuela Gallardo II noted that there are strong arguments that courts should not defer in a dual application context, under Chevron Step Zero. However, the court found that precedent required it to apply Chevron in this case. It rejected the BIA’s definition under Chevron Step One, finding that there was no ambiguity in the statute, and Congress clearly intended the § 1101(S) definition to require “a nexus to an ongoing or pending proceeding or investigation.” Id. at 1062, and see discussion at 1062-1069.

(For a basic introduction to Chevron, see ILRC, Who Decides: Overview of Chevron, Brand X, and Mead Principles (2011) at https://www.ilrc.org/who-decides-overview-chevron-brand-x-and-mead-principles.) for case citations and further discussion.

Obstruction of justice is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S). After some litigation, in 2020 the Ninth Cir rejected the BIA’s generic definition of obstruction and held that PC 32 never meets the AF definition of obstruction of justice. Valenzuela-Gallardo II. However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less.

The panel in Valenzuela-Gallardo II held that obstruction requires interference with an existing investigation or proceeding. PC 32 reaches other conduct, e.g., avoiding an arrest or tampering with evidence before there is any investigation or proceeding, or without knowledge of one. The panel found that PC 32 is not divisible as to whether there is an existing proceeding, and therefore no conviction meets the definition of obstruction. Therefore, no PC 32 conviction is an AF, even if a year or more is imposed.

The BIA had held that obstruction of justice includes interference in an investigation or proceeding that already exists, or that is “reasonably foreseeable” by the defendant. Under that test, it held PC 32 is obstruction. The Ninth Circuit overruled this in Valenzuela Gallardo II.

If Valenzuela Gallardo II were to go en banc, and the en banc panel were to uphold the BIA’s definition, immigration counsel further could argue that the BIA’s definition cannot apply retroactively to convictions from before September 11, 2018, the date the definition was published. The BIA found that its definition can be retroactively applied, and that decision, Matter of Cordero-Garcia, also is pending before the Ninth Circuit. Again, see above endnote for citations and further discussion of these issues.

Defenders who cannot avoid 1 yr or more can consider safer pleas such as PC 487, 530.5, 459/460(a) or (b), 591, 594, or probably 69, 236/237, 207. See also § N.4 Sentence.

CIMT: Because the BIA and Ninth Circuit also disagree here, the best practice to avoid a CIMT 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, create an inconclusive (vague) ROC that does not ID the principal’s offense. Creating an inconclusive ROC is discussed at 11377.

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.

Attempt to deter by threat or resist by force an executive officer in performing any duty

Always try to avoid 1 yr or more on any single count, to avoid an AF. But arguably this is not an AF as obstruction of justice; see Advice.

Not an AF as a COV: minimum conduct is offensive touching.¹⁸See Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (minimum conduct for Pen C § 69 is offensive touching, so felony is not categorically a COV); U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (after Descamps, supra, if minimum conduct of felony resisting arrest under Arizona law is not a COV, no conviction is a COV).

Not CIMT because minimum conduct is offensive touching.

No other removal ground.

AF as Obstruction. See case citations and further discussion here.¹⁹An offense relating to “obstruction of justice” is an AF if a sentence of a year or more is imposed. 8 USC 1101(a)(43)(S). Arguably PC 69 is not obstruction for this purpose, although there is no precedent. It is best to get 364 days or less, but where a year cannot be avoided this likely is a safer plea than, e.g., PC 32. For more background on the Ninth Circuit and BIA dueling definitions of obstruction, see PC 32 endnotes, above.

PC 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…”  PC 69 should not be held obstruction under the Ninth Circuit decision Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II”). That defines obstruction to require interference with an ongoing proceeding or investigation, whereas PC 69 includes interference in any duty and includes an initial arrest, with no already-pending investigation or proceeding.

However, because at this writing Valenzuela Gallardo II could go to rehearing en banc, and it is possible the BIA definition would be used, we also should consider the BIA definition.

The BIA definition of obstruction includes interference in an ongoing or a “reasonably foreseeable” proceeding, which it held includes helping another person to avoid initial arrest under PC 32. See discussion of Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018) at PC 32. Unlike PC 32, PC 69 arguably is outside of the BIA’s definition because it includes interference in any duty by the official. For example, it includes resistance to an officer who is trying to prevent a suicide. A person was convicted under the second prong (resisting by force) who had “threatened to jump off [a] railing and had to be physically restrained,” so that he “forcibly resisted the officers in pulling him off the area he was trying to jump from” and “[i]n that process [an] officer was injured.” United States v. Fowles, 225 F. App’x 713, 714 (9th Cir. 2007). Arguably in that case a proceeding or investigation is not necessarily foreseeable.

It may be best to plead to the second prong (resisting by force) as this is a general intent crime. People v. Rasmussen, 189 Cal.App.4^th 1411, 1420 (Ct.App.1^st Dist. 2010). The BIA’s current generic definition of obstruction is “crimes involving (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere with an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant.” Matter of Valenzuela Gallardo, 27 I&N Dec. at 456 (emphasis altered and internal quotation marks omitted). The suicide case presents two possible defenses: an arrest was not reasonably foreseeable and there was no specific intent.

Even if the BIA’s definition were to be upheld, counsel can assert that this definition cannot be applied to convictions from before Sept. 11, 2018, which was the date the BIA set out this definition in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018). The BIA held that this definition can be applied retroactively, and that decision is pending on appeal to the Ninth Circuit. Matter of Cordero-Garcia, 27 I&N Dec. 652, 657-663 (BIA 2019) (PC 136.1(b)(1) is obstruction because an investigation or proceeding is reasonably foreseeable, and the BIA definition applies retroactively to convictions from before 9/1/2018). See also discussion at PC 32.

Obstruction of justice is an AF if a year or more is imposed. After some litigation, in 2020 the Ninth Circuit held that the definition of obstruction requires interference with an existing proceeding or investigation; it rejected the BIA’s definition that also included interference with a “reasonably foreseeable” proceeding or investigation. Valenzuela-Gallardo II. PC 69 is not obstruction under Valenzuela-Gallardo II.  However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less.  For immigration advocates, best practice is to defer affirmative applications that rely on Valenzuela-Gallardo II, but of course advocates in removal proceedings should cite this decision and make all arguments.

Note that even the BIA definition, which includes interference in a “reasonably foreseeable” proceeding, might not include PC 69, because 69 prohibits interference in any duty, e.g., resisting an officer who tries to stop D from committing suicide, an event that might not “foreseeably” lead to proceedings. A plea to resisting by force (an offensive touching) may be better than to attempting to deter, because it lacks specific intent However, there is no on-point precedent and the law is unsettled. Finally, if the BIA definition became the rule, arguably it should not apply retroactively to convictions from before September 11, 2018.

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.

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 should not be an AF even with 1 year.²⁰Commercial bribery, bribery of a witness, and obstruction of justice are aggravated felonies if a year is imposed, but bribery of a referee or umpire are not. See 8 USC § 1101(a)(43)(R), (S).

Manufacture, sell false documents with intent to conceal immigration status of another

Obtain 364 days or less to avoid AF charge.
Likely AF if loss to victim/s exceeds $10k
See Advice

Likely charged as a CIMT, although imm advocates should explore arguments against this. There is no intent to defraud or harm.²¹Pen 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.

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, or counterfeiting. Immigration advocates may have arguments against this, but it is far better to avoid 1 year.²²Pen C §§ 112, 113 as an AF if a sentence of a year or more is imposed. This offense might be held 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.

Pen C § 112 (misdemeanor) and § 113 (felony) punish a person “who manufactures or sells any false government document with the intent to conceal the true citizenship or resident alien status of another person…” It defines “government document” as “any document issued by the United States government or any state or local government, including, but not limited to, any passport, immigration visa, employment authorization card, birth certificate, driver’s license, identification card, or social security card.” (Emphasis supplied.)

AF as document fraud. A state offense that is analogous to 8 USC § 1546(a) is an aggravated felony if a sentence of a year or more is imposed. 8 USC § 1101(a)(43)(P). Advocates have a strong argument that Pen C §§ 112, 113 are overbroad and indivisible compared to 8 USC § 1546. Therefore, even if a sentence of a year or more is imposed, the conviction should not be held an AF under this section. (But see counterfeiting and forgery, below.)

Sections 112, 113 punish a person who manufactures or sells a range of federal and state documents, including birth certificate and driver’s license, with the intent to “conceal” immigration or citizenship status for any purpose. Section 114 punishes a person who uses a false document with that intent.

In contrast, 18 USC § 1546(a) punishes a person who forges, counterfeits, etc. any “immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States,” or possesses, uses, receives, such a document, plus offenses related to those documents and that purpose.

Sections 112, 113 are broader than 18 USC 1546(a) because they include a broader range of documents, and with a broader intent. While § 1546 is limited to documents that are used for immigration purposes such as entry, authorized stay, and employment authorization, §§ 112, 113 include documents used simply to conceal immigration status for any purpose. Sections 112, 113 should be found indivisible because the only purpose is “to conceal” the true status of the person. This includes concealing immigration status for non-federal purposes. For example, a man was convicted of Pen C 114 (“use” one of these documents) when he attempted to use a fake green card to get a driver’s license, which he needed so that he could retrieve his wife’s towed car. People v. Guzman, H022726, 2003 Cal. App. Unpub. LEXIS 1199 (Feb. 3, 2003) (unpublished). The single word “conceal” cannot be found divisible between concealing for immigration purposes and concealing for other purposes. Second, there is no indication that a jury must unanimously agree as to the type of document in §§ 112, 113.

AF as forgery. A conviction of forgery is an AF if a sentence of a year or more is imposed. 8 USC 1101(a)(43)(R). The Ninth Circuit held that the “generic, core definition of forgery … requires intent to defraud…” Morales-Alegria v. Gonzales, 449 F.3d 1051, 1056 (9th Cir. 2006). Immigration advocates can investigate defenses based on the fact that Pen C §§ 112-114 do not have an intent to defraud, or to gain at another’s expense. See, e.g., People v. Guzman, H022726, 2003 Cal. App. Unpub. LEXIS 1199 (Feb. 3, 2003) (unpublished) (man obtained drivers’ license using false green card because he needed a license to retrieve his wife’s towed car.) The also could investigate the definition of a “false document” in §§ 112-114, to see if it requires a forged document as opposed to something else.

AF as counterfeiting. This may be the most difficult. A conviction of counterfeiting is an AF if a sentence of a year or more is imposed. 8 USC 1101(a)(43)(R). If the term “false document” in Pen C §§ 112-114 includes only counterfeit documents, this meets a key element of counterfeiting. The Ninth Circuit defined an offense “relating to counterfeiting” broadly for this purpose, for example, it includes possession with intent to defraud. Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000). However, if counterfeiting, like forgery, requires an intent to defraud, Pen C §§ 112-114 may be distinguishable.

AF as crime of deceit with loss to victim/s exceeding $10,000, assuming there are “victims” to this offense.²³AF 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.

Use false documents to conceal one’s own immigration status

See PC 112, 113, and see Advice

See PC 112, 113.

See 112, 113.

AF. See 112, 113.

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.
AF if loss to victim/s exceeds $10k.

Likely charged as CIMT, but advocates should explore defenses: it does not require a material misstatement, or intent to defraud.²⁴Advocates 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.”²⁵Conviction 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.

Perjury

Get 364 days or less on any one count to avoid an AF as perjury.
If the perjury resulted in loss > $10k, it may be an AF as a crime of deceit.
See Advice.

Ninth Circuit held that written perjury is not a CIMT, and that the statute is divisible. Plead specifically to written, but also see Advice.
The Ninth Circuit did not rule on whether oral perjury is a CIMT, but BIA held that it (as well as written perjury) is a CIMT.

No other removal ground.

CIMT. 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), because the law on 118 may be volatile. The Ninth Circuit declined to defer to a BIA opinion finding that 118, including written, always is a CIMT, on the grounds that the BIA had failed to explain its reasoning.²⁶Pen 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.

The court did not rule on whether oral perjury under Pen C § 118 is a CIMT. Defenders should assume conservatively that it is, but immigration advocates can explore arguments that it is not. As with any argument that may not prevail, at the same time advocates should explore other defense strategies, including obtaining post-conviction relief.

While this is a good decision, be aware that the BIA might challenge the Ninth Circuit on the CIMT issue in the future and it is possible that the court would defer to the Board. In Rivera, the Ninth Circuit declined to defer to the BIA’s holding in Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001) that § 118 is categorically (always) a CIMT, on the grounds that the BIA had provided no explanation for its holding. Rivera, 816 F.3d at 1017-71. In a subsequent case that ruled only on aggravated felonies, the BIA acknowledged without comment the Rivera reasoning in refusing to defer. Matter of Alvarado, 26 I&N Dec 895, 902 at n. 12 (BIA 2016).

In Rivera, the Ninth Circuit noted that California has multiple other perjury statutes for different contexts (see, e.g., Financial Code § 460, Gov’t Code § 1368). Because each of these has distinct elements, each requires a separate CIMT analysis. In future, the BIA might issue a new opinion and the Ninth Circuit might decide to defer—so while the current rule is that 118 is not a CIMT could change and defenders should not rely on it.

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.²⁷Pen 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.

Destroy or conceal evidence

Not AF as obstruction of justice (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.

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. It appears not to be divisible. BIA held it is never a CIMT in at least one unpublished decision, but not in precedent opinion. ²⁸The 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.

Section 136.1(b)(1) also is not a CIMT, but with an even stronger argument. Section 136.1(a) is not a CIMT despite the fact that it requires knowing and malicious action. Section 136.1(b)(1) has no requirement of knowing or malicious conduct, unless a provision of § 136.1(c) also applies. See, e.g., People v. Usher (2007) 144 Cal.App.4th 1311, 1321 and discussion at CALCRIM No. 2622. But even when malice does apply, § 136.1(b) uses the same definition as § 136.1(a) and so is not a CIMT.

The BIA has not held in a precedent opinion that § 136.1(b)(1) is not a CIMT, which means that there is always the chance that the Board would do this, and the Ninth Circuit would defer to that. That seems unlikely, however. See also, e.g., unpublished decision holding 136.1(b)(1) is categorically not a CIMT. Matter of C-E-P-G– (BIA Dec. 18, 2018).

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, 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.

See further discussion and case citations in this endnote²⁹An offense that meets the generic definition of obstruction of justice is an aggravated felony under 8 USC § 1101(a)(43)(S), if a sentence of a year or more is imposed. The BIA held that Pen C § 136.1(b)(1) meets this definition. Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019). In Cordero-Garcia at 657-663, the BIA also held that its definition can be applied retroactively to convictions from before Sept. 11, 2018, which was the date the BIA set out the definition in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018).

As of October 2020, Cordero-Garcia is pending on appeal before the Ninth Circuit. Immigration advocates have argued that Cordero-Garcia was wrongly decided, on both the substance (the BIA’s generic definition of obstruction is invalid; see discussion of Valenzuela Gallardo II, below) and in the alternative on its holding that its definition can be applied retroactively to pre-9/11/2018 convictions.

In August 2020, the Ninth Circuit held that the BIA’s generic definition of obstruction is invalid to the extent it includes interference with a not yet existing but “reasonably foreseeable” proceeding. See Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II”). This overrules Cordero-Garcia, which held § 136.1(b)(1) to be obstruction on that very basis. But the risk is that at this writing, it still is possible that Valenzuela Gallardo II could go en banc; therefore defenders should act conservatively and seek 364 days or less on each count. See discussion in Advice and endnotes to PC 32.

The BIA’s definition of obstruction also includes federal offenses at 18 U.S.C. §§ 1501-1521 and state analogues. The BIA pointed out that 18 USC § 1512 does punish persuading a witness not to provide evidence that a crime occurred. There are two responses to this argument. First, the Ninth Circuit rejected it, pointing out that this aspect of § 1512 is “the exception that proves the rule” that the generic definition requires an existing proceeding. See Valenzuela Gallardo II, 968 F.3d at 1065-66. Second, even if 18 USC § 1512 were used as a generic definition, PC 136.1(b)(1) does not match it. 18 USC § 1512 it requires “knowing use of intimidation, physical force, threats, corrupt persuasion, or misleading conduct” and intentional harassment. See Matter of Valenzuela Gallardo, 27 I&N Dec. at 454. Section 136.1(b)(1) entirely lacks the elements of either “corrupt persuasion” or intentional harassment. It does not even require malice. Compare § 136.1(b)(1) with (a) and (c), which do require malice, and see, e.g., People v. Brackins (2019) 37 Cal.App.5th 56, 64-67; see also discussion in Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017) (holding that even 136.1(a) is not a CIMT). Thanks to Mike Mehr, counsel on Cordero-Garcia, for his insights. and see PC 32.

AF: Obstruction of justice is an AF if a year or more is imposed. The BIA held that 136.1(b)(1) is obstruction under its own definition, which includes interference in an existing or “reasonably foreseeable” investigation or proceeding, or an offense analogous to certain federal obstruction offenses. See Matter of Cordero-Garcia (2019), currently pending on appeal at the Ninth Circuit.

In August 2020, in a case involving PC 32, the Ninth Circuit held that the BIA’s definition is invalid, and that obstruction requires interference with an existing, not a foreseeable, investigation or proceeding. Valenzuela Gallardo II. PC 136.1(b)(1) is not obstruction under that definition, because it can involve an initial police report with no pending investigation or proceeding. However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less. If 1 yr or more is required, consider, e.g., 459 (1^st or 2^nd degree), 487, 530.5, 591, 594, possess weapon, and probably 236/237, 207(a) as an alternative. If a prison sentence is required, 136.1(b)(1) can be a ‘consecutive’ offense with an 8-month sentence imposed. A felony is a strike.

Imm advocates will cite Valenzuela-Gallardo II, and assert that Matter of Cordero Garcia cannot be applied to find 136.1(b)(1) to be obstruction — unless Valenzuela-Gallardo II is taken up en banc. If it is overruled and the BIA definition is imposed, they can argue that 136.1(b)(1) convictions from before 9/11/2018 are not obstruction.

Use or threaten to use force or violence upon the person of, or take, damage, property of, a witness who provided info to authorities

Possible AF as obstruction, so obtain 364 days or less imposed on each count.
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.
See endnote at Advice.

Assuming it is not a COV, then it is not a deportable crime of DV. A plea to taking or damaging property ensures that it is not a DV offense.
To ensure not wrongly charged as a deportable crime of child abuse, keep minor V’s age out of the ROC. See discussion at 243(a).

For further discussion of PC 140 as a CIMT or AF, see endnote.³⁰Pen C § 140 as COV. While there is no case on point, Pen C § 140 is a general intent crime with no requirement that the defendant intend to cause fear or to affect the victim’s conduct in any way (People v. McDaniel (1994) 22 Cal.App.4^th 278), and no requirement that the threat be conveyed to the victim in any manner (People v. McLaughlin (1996) 46 Cal. App.4^th 836). See also CALCRIM 2624. The phrase “force or violence” used in § 140 is the same phrase used in simple battery statutes, which has been determined to include the minimal conduct of offensive touching that causes no pain; this is distinct from the violent physical force contemplated by 18 USC § 16(a) and COVs.

It appears to be indivisible, as there is no authority that a jury must unanimously decide whether the conduct was against a person or property in order to find guilty under § 140. CALCRIM 2624.

Pen C § 140 as obstruction of justice. See Pen C §§ 32 and 136.1(b)(1) for further discussion of this aggravated felony, which appears at 8 USC § 1101(a)(43)(S). There is no case on point for whether § 140 is considered an offense related to obstruction of justice as an aggravated felony. Immigration advocates can explore arguments that it is not, but defenders must try hard to avoid a sentence of a year or more on a single count and assume that authorities will be likely to hold that it is.

Using or threatening to use force or violence against, or taking, damaging or destroying the property of, a witness, victim, or other person who provided information or assistance to police or prosecution under § 140 is a general intent crime. There is no requirement that the defendant intended to cause fear to the victim or intended to affect the victim’s conduct in any manner, e.g., preventing a witness from cooperating with an investigation or proceeding. See People v. McDaniel, 22 Cal.App.4th 278, 282-3 (Ct. App. 2nd Dist. 1994). Section 140 “defines only a description of the particular act of threatening to use force or violence, or taking, damaging, or destroying property, without reference to an intent to do a further act or achieve a future consequence.” Id. at 284. The victim need not be aware of the threat. CALCRIM 2624; People v. McLaughlin, 46 Cal.App.4th 836, 841 (Ct App 6th 1996). Therefore, it does not meet the requirement of specific intent that the BIA consistently has set out, and recently reiterated in Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018) (Valenzuela Gallardo II).

But the government may argue that § 140 is obstruction regardless of specific intent, because it comes within the other part of the BIA’s generic definition of obstruction: it is a state offense that matches a federal offense described in 18 USC §§ 1501-1521. Ibid. Section 140 is broader than 18 USC § 1513(b), which requires either bodily injury (as opposed to § 140 offensive touching) or damage to property (as opposed to § 140 taking or damaging) and includes a greater specific intent element. However, § 1513(e) provides, “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person” is guilty. Immigration counsel can investigate arguments distinguishing the statutes, including the fact that § 140 is a general intent crime, but at the same time should pursue other defense strategies including the possibility of post-conviction relief.

Pen C § 140 as a CIMT: The federal generic definition of a CIMT is a crime involving conduct that is: “(1) vile, base, or depraved and (2) violates accepted moral standards.” Escobar v. Lynch, 846 F.3d 1019, 1023 (9th Cir. 2017). There is no Ninth Circuit or BIA case on whether § 140 is a CIMT.

The Ninth Circuit held that “criminal threats alone, without any attendant serious physical harm, do not necessarily implicate moral turpitude.” Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012). A violation of § 140 does not require attendant serious physical harm. The underlying conduct threatened, “force or violence,” is not a CIMT and can be distinguished by § 422, proscribing threats of “death or great bodily injury,” which is categorically a CIMT. Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012). The threat of “force or violence” in § 140 are terms used in simple assault battery statutes, which are not categorically CIMT because the required mens rea is the intent to “touch another offensively, not the ‘evil’ intent typically required for a CIMT.” Id. at 1161. An assault statute is not a CIMT where it does not include a “specific intent to injure or a special trust relationship and not requiring that the assault cause death or even serious bodily injury.” Id. Section 140 does not involve a specific intent to injure or a special trust relationship, or that if carried out causes serious bodily injury. § 140 does not require the threatened person to be in sustained fear like § 422, rather, the threatened person need not be aware of the threat. CALCRIM 2624. Further, § 140 does not require the intent to prevent the person from providing information to authorities, and even if there were, the Ninth Circuit held that an offense such as Pen C 136.1(a) is not a CIMT. There is no requirement that the prosecution was successful, or the statement was true. Therefore, § 140 should be considered a CIMT. However, because there is no precedent and because the victim is someone who participated in a proceeding, it is possible that ICE would charge it that way.

AF as Obstruction. Imm advocates can argue that 140 is not obstruction under BIA and Ninth Cir definitions, because it has no intent to impede an ongoing (or even past) process and is not a full match to a federal obstruction offense. But authorities may well decide that it is obstruction. If more than 1 year is required, consider offenses such as 236/237, 487, 459, 591, 594 and/or work with structuring the sentence.

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.

Resisting officer or EMT in discharge of duty (a)

Additionally, taking the officer’s weapon (b)-(d)

Because of possible charge that (b)-(d) is AF as obstruction of justice or a COV with a 1-year sentence, obtain 364 days or less on any single count.

Or see Advice

(a) should not be CIMT: minimum conduct is, e.g., going limp.

(b)-(c) should not be CIMT but try to plead to “reason-ably should have known” was officer, because negligence is not a CIMT and there is no requirement of specific intent.

(d) involves taking with intent to permanently deprive, which is likely to be held a CIMT.

Assume conservatively that (c) and (d) are deportable firearms offenses, in case the antique firearm exception is held not to apply to police on duty.³¹Pen 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.

AF:  See case citations and further discussion here.³²Pen C § 148 as the aggravated felony “obstruction of justice.” An offense that meets the generic definition of obstruction of justice is an aggravated felony if a sentence of one year or more is imposed. 8 USC 1101(a)(43)(S). Getting a sentence of 364 days or less on each count will prevent an aggravated felony (AF) conviction.

Sentence. Section 148(a)(1) is a misdemeanor that punishes a person who “willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician … in the discharge or attempt to discharge any duty…” Since January 1, 2015, § 148(a) has had a potential sentence of 364 days (see Pen C § 18.5(a)), so no conviction should have an imposed sentence of a year. But before January 1, 2015, it had a potential sentence of a year, so some clients might have a § 148(a) prior with a year imposed. In that case, advocates should consider the below arguments that 148(a) is not obstruction, and/or try to obtain post-conviction relief to vacate the conviction or reduce the sentence based on legal error. Reduction of sentence under Pen C §18.5(b) is not being given immigration effect, based on a ruling by Attorney General Barr. See ILRC, § N4: Sentence (October 2020) at www.ilrc.org/chart.

Sections 148(b) and (d) are wobblers and so may have a sentence imposed of a year or more.

Obstruction of justice definition. Pen C 148(a) should not be held obstruction under the controlling Ninth Circuit decision Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9^th Cir. 2020) (“Valenzuela Gallardo II”). That defines obstruction to require interference with an ongoing proceeding or investigation, whereas § 148 includes interference in an initial arrest or in any duty, with no pending investigation or proceeding. But at this writing, Valenzuela Gallardo still could go to rehearing en banc and be overturned in favor of the BIA’s definition. See discussion at endnotes to Pen C § 32, above.

Therefore, because it is possible that the court en banc would reverse Valenzuela Gallardo II and choose the BIA definition, we should consider the BIA definition as well. The BIA defines obstruction as offenses covered by 18 USC §§ 1501-1521, or offenses that require: “(1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere with an investigation or proceeding that is ongoing, pending, or ‘reasonably foreseeable by the defendant.’” Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018). Is Pen C 148 obstruction under the BIA’s definition?

While there is no case on point, immigration counsel can explore several bases for arguing that § 148 does not meet the BIA’s generic definition of obstruction. The fact that § 148 uses the terms “resists, delays, or obstructs” is not dispositive; the issue is whether the elements of § 148 are contained within the generic definition of obstruction. See generally Mathis v. United States, 136 S.Ct. 2243 (2016).

First, by the terms of the statute, at least § 148(a) includes interfering with a medical technician, which is not obstruction of justice. Second, resisting one’s own arrest is a spontaneous act, and § 148 requires no specific knowledge or motivation. In Matter of Joseph, 22 I&N Dec. 799, 808 (BIA 1999), the BIA found that resisting one’s own arrest pursuant to Maryland’s common law “obstructing and hindering” offense would not likely constitute generic ‘obstruction of justice’ under 8 USC § 1101(a)(43)(S). The Ninth Circuit distinguished between an attempt to escape justice after having submitted to the judicial process, and fleeing arrest, which did not constitute obstruction of justice because the person was not sufficiently on notice. See Renteria-Morales v. Mukasey, 551 F.3d 1076, 1088 (9th Cir. 2008) (citing U.S. v. Draper, 996 F.2d 982, 984-86 (9th Cir. 1983). (However, to some extent Renteria rested on the fact that there was no existing investigation or proceeding.) Third, § 148 lacks the specific intent that the BIA requires: it is a general intent crime, proscribing only the particular act, e.g., resisting, without reference to an intent to do a further act or achieve a future consequence. See CALCRIM 2656. It can involve interference where an investigation or proceeding is not reasonably foreseeable, and where there is no intent to impede arrest or criminal proceedings specifically. Section 148 has been used to prosecute interfering with police who are quieting down a loud party (People v. Martinez (1970) 3 Cal.App.3d 886), or interfering by declining to get or stay in a car during a traffic stop (Young v. County of Los Angeles, 655 F.3d 1156 (9th Cir. 2011), Donovan v. Phillips (9th Cir. 2017) 685 Fed.Appx. 611, 2017 WL 1164437). It is violated by an act of civil disobedience in passively going limp while being arrested, with no intent to avoid arrest or prosecution. In re Bacon (1966) 240 Cal.App.2d 34. It is violated by declining to provide one’s name for 30 minutes at booking, because that tends to delay the booking officer. People v. Quiroga (1993) 16 Cal.App.4th 961.

Sections (b)-(d) include additional conduct: taking an officer’s weapon or gun. Completing the offense of taking or removing an officer’s gun while resisting arrest arguably does not make the offense more likely to constitute obstruction. It is general intent crime. People v. Matthews, 70 Cal. App. 4th 164, 175 (Cal. Ct. App. 1999). CALCRIM 2654. See also 2 Witkin, Cal. Crim. Law 4th Crimes–Govt § 20 (2012). Removing or taking as used in Pen C § 148 includes conduct such as picking up a dropped gun, and corresponding to “grabbing, holding, seizing, pushing, lifting, picking up, or similar notions.” People v. Matthews, at 174. This shows that the offense also is not a crime of violence.

Still, criminal defense counsel should act conservatively and plead to a different offense if one year will be imposed until it is known whether the Ninth Circuit standard will remain in place.  See also discussion at PC 32.

Obstruction of justice is an AF if a year or more is imposed. In 2020 the Ninth Cir held that the definition of obstruction requires interference with an existing proceeding or investigation. It rejected the BIA’s definition that also included interference with a “reasonably foreseeable” proceeding or investigation. Valenzuela-Gallardo II. PC 148 is not obstruction under Valenzuela-Gallardo II because it can involve an initial arrest with no pending investigation or proceeding.  However, a petition for rehearing en banc is pending in the case, so defenders should act conservatively and seek 364 days or less on any single count.

Immigration counsel should cite Valenzuela Gallardo II as a defense. But if that were to be reversed en banc, counsel could argue that 148 is not obstruction under the BIA’s definition either, because it can involve impeding an officer’s duties where further proceedings are not reasonably foreseeable. Counsel also can argue that the BIA definition cannot apply retroactively to convictions from before 9/11/2018. See endnote above.

Note that while 148(a) is a misdemeanor, a conviction for 148(a) from before 1/1/15 might have a one-year sentence imposed.

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 CIMT³³ 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.

In the context of Pen C § 32, the Ninth Circuit held that crimes where the benefit gained is the impediment of law enforcement and avoidance of arrest do not involve moral turpitude. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007). The purpose of Pen C § 148.5 is to “deter false reports of crimes and the resulting inconvenience and danger to other members of the public.” People v. Craig, 21 Cal. App. 4th 1 (1993). and does not require intent to benefit, but no precedent; if avoiding CIMT is crucial, seek an alternative.

False ID to peace officer

Not AF

Not CIMT³⁴Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008).

No other removal ground.

No specific intent to evade arrest or prosecution, or commit fraud

Contempt of court, including violation of any court order

Not AF because 6-month max.

Should not be CIMT.
(a)(1)-(3) has no intent. This is a good imm plea
(4) should not be held CIMT because minimum conduct is to violate any court order—but there is no imm case on point. However, (4) may be deportable DV offense.

DV deportation ground: A civil or criminal court finding of any violation of any DV stay-away order will make the person deportable.
A plea to (a)(1)-(3) should be safe and a good imm plea. Nailing this down by creating a specific record showing conduct other than violation of a DV stay-away order, is a good idea.
But creating a vague record under (a)(4) or (b)(1), when in fact the violation is of a DV stay-away order, is not safe.
Instead: (1) Plead to specific conduct relating to non-deportable violations, e.g., re child support, visitation, failure to attend classes, probation mtg, etc., or (2) Plead to a new offense (with ROC sanitized of any mention of a PO) instead of any violation of any order. See Advice.

See endnote for further discussion and citations.³⁵A person is deportable under 8 USC § 1227(a)(2)(E)(ii) if a civil or criminal court finds that they violated a portion of a DV order (probation condition, family court order, etc.) that protects against threats, injury, or repeat harassment. The violation must be after admission and after September 30, 1996.

Courts have held that a finding of this type of violation (which we’ll refer to as a DV stay-away order) causes deportability even if it is based on very minor conduct, like walking a child up the driveway after visitation rather than leaving them at the curb. See Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009), Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).

Immigration authorities can use any probative evidence, including from outside the record of conviction, to establish that a court’s finding of violation of a court order is actually a finding of violation 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 the categorical approach applies to this inquiry and that Pen C § 273.6 was a divisible statute. In July 2019 it reversed itself in order to defer to the BIA’s interpretation, which is that the categorical approach does not apply to this prong of the domestic violence deportation ground (8 USC 1227(a(2)(E)(ii), as opposed to (E)(i)), since this involves a finding of a violation by either a civil or criminal court. See Diaz-Quirazco v. Barr (9th Cir. July 23, 2019), deferring to Matter of Medina-Jimenez, 27 I. & N. Dec. 399 (BIA 2018) and Matter of Obshatko, 27 I&N Dec. 173, 176-77 (BIA 2017) and withdrawing from Alanis-Alvarado v. Holder, 558 F.3d 833, 835, 839-40 (9th Cir. 2009).

Defense counsel already were advised not to rely on a vague record of conviction under Pen C §§ 166 or 273.6 to protect the defendant. Do not plead to any violation of a DV stay-away order. One can plead to violating a part of a DV order whose purpose is not to protect against threats, injury, or harassment, such, as e.g., conduct relating to child custody, visits, or support, or failure to attend classes. A plea to Pen C § 166(a)(1)-(3) should be safe, but specifically state that this was an event related to the court, as opposed to the DV victim. Or, plead to a new, non-deportable offense with an ROC sanitized of violation of any order. If pleading to a new offense, it is optimal to identify a specific victim who is not protected under DV laws or listed in the DV order (e.g., the ex-wife’s new boyfriend, the neighbor, the officer), although this might not be necessary.

A person 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.

In 2019 the Ninth Circuit withdrew from prior decisions and deferred to the BIA as to what evidence DHS can use to show that a judge’s finding of violation of “an order” actually is a finding of violation of a DV stay-away order (or other portion of a DV order that is meant to protect against injury, threats, or repeat harassment). ICE can use evidence from outside the ROC to prove the violation the court found was of those portions of a DV stay away order, because the categorical approach does not apply to this prong of the domestic violence deportation ground. Best practice is plead to 166(a) with specific non-deportable conduct (see other column) or else to a new offense that is sanitized of any order violation. For best protection, new offense should be against a V not listed in the order or to a victimless crime; but if that is not possible, any non-deportable offense.

Violation of various protective or stay-away orders

Not an AF: Not a COV, plus maximum sentence is 364 days.

While there are no cases, it does not appear to be a CIMT as it can be committed by a small or technical violation

Not a good plea to avoid deportability, because a civil or criminal court finding of any violation of a DV stay-away order will make the person deportable. See discussion at 166(a), above.

PC 166(c) is risky for this deportation ground, but see Advice.

DV deportation ground. To avoid this ground, consider a plea to 166(a), 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 it is not possible to avoid a plea to 166(c), try to create a plea that identifies a specific victim who does not have a domestic relationship with D. Otherwise, know that 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. Section 166(c)(1)(A) prohibits violating an order by committing 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.

Conspiracy

Yes, AF if principal offense is AF.
See Advice if loss to victim/s exceeds $10k.

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.
But the exception might be for child abuse, stalking, crime of DV. See Advice.

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).³⁶8 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.

Note that the result is different for aggravated felonies. If a conviction of conspiracy to commit a COV has a sentence of more than a year imposed, it will be an aggravated felony, because the AF definition itself includes conspiracy to commit an AF. 8 USC § 1101(a)(43)(U). So, while conspiracy to commit a COV with a year or more imposed arguably cannot be a deportable crime of domestic violence (definition lacks “conspiracy”), assume that it will be an aggravated felony (“conspiracy” is included). Imm counsel can argue that conspiracy to commit these offenses does not trigger the DV deport ground. But defenders should act conservatively and not regard these as safe pleas.

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.

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.
Otherwise this is not a per se basis for deportability or inadmissibility, although Congress might add it in the future.

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.

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).

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.³⁷See 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.

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.
To ensure not wrongly charged as child abuse, keep minor V’s age out of the ROC. See 243(a).

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.³⁸Gomez Fernandez v. Barr, 969 F.3d 1077 (9th Cir. 2020).

Voluntary manslaughter

Possible change in the law could make this an AF as COV if 1 year or more is imposed; see Advice.

Assume this is CIMT.
To avoid CIMT see PC 192(b).

Because it is not a COV, it is not a deportable crime of DV.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

COV: Courts have long held that a crime of violence requires more than reckless intent. Therefore, 192(a) has been held not an AF as a COV, even with a sentence of a year or more. But the Supreme Court will take up the issue in 2020, in Borden v. United States.³⁹Quijada-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015) held that Pen C § 192(a) is not a COV because it can be committed by recklessness. The court reaffirmed US v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir. 2008) and Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc), finding that in order to constitute a crime of violence under 18 USC § 16, “the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission” Quijada at 306, citing Gomez-Leon at 787 (emphasis in original). (Note that the latter point, that a COV may exist if there is a substantial risk that force will be intentionally used during commission of the offense, is no longer applicable because it interpreted the definition of a COV at 18 USC § 16(b). The Supreme Court struck down that section in 2018 in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). See Pen C § 207.)

But in Borden v. United States (19-5410), the Supreme Court will decide whether the definition of a COV in the ACCA, which is basically identical to the immigration definition at 18 USC § 16(a), includes reckless conduct. Oral argument will take place in November 2020. Therefore defenders must conservatively assume that recklessness can amount to a COV, and that § 192(a) may become an aggravated felony as a COV if a year or more is imposed, and may be a deportable crime of DV if the victim and defendant had a protected relationship. (Borden takes up the issue presented in Walker v. United States (19-373), which was withdrawn when Mr. Walker died.) Therefore, for now defenders should conservatively treat 192(a) as a COV.

Better option is 192(b), (c). The Court is not considering whether gross negligence could amount to a COV.

Involuntary or vehicular manslaughter

Not a COV.
See 192(a) and see Advice

Should not be CIMT; best practice is plea to negligence, not conscious disregard.⁴⁰CIMT: While there is no case on point, Pen C § 192(b) should not be held a CIMT. In Matter of Tavididishvili, 27 I&N Dec. 3906 (BIA 2017), the BIA held that New York’s offense of criminally negligent homicide is not a CIMT because it can be committed with criminal negligence, and not with the requisite “recklessness” that is the “hallmark” of a CIMT. The BIA noted that New York’s criminal negligence standard was indistinguishable from Washington’s criminal negligence standard that the BIA had previously held not to be a CIMT, because it occurs when a person merely “fails to be aware” of a substantial and unjustifiable risk, rather than with “a conscious disregard of a substantial and unjustifiable risk.” In People v Penny (1955) 44 Cal.2d 861, the California Supreme Court in analyzing Pen C § 192 noted that the phrase “without due caution or circumspection” is the equivalent of criminal negligence, and that various cases have found that this standard is more than ordinary civil negligence but does not rise to “wanton or reckless” disregard for human life. Therefore, the California offense, like the New York and Washington offenses, is not a CIMT.

Because it is not a COV, 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).

These offenses are not COVs because they have a minimum conduct amounting to negligence.⁴¹ Involuntary 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 in above endnote. The Ninth Circuit held that even voluntary manslaughter committed by recklessness (conscious disregard of a known risk), Pen C § 192(a), is not a COV. Quijada-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015). If at some point courts interpret the definition of a crime of violence at 18 USC § 16(a) to include recklessness (see discussion at Pen C § 207), that should not include § 192(b), (c). Even if the Supreme Court were to decide to include recklessness in the definition of COV (see discussion of Borden case in Advice to 192(a)), that should not include gross negligence. Best practice is a specific plea to negligence.

Mayhem

Yes, AF as COV⁴²Matter 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 ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

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.

Kidnapping

PC 207(a) and (d) have been held not to be COVs under 18 USC 16(a). But see Advice re the risk posed by Stokeling, and conservatively try to get 364 days or less on each count until there is a precedent decision interpreting it.
See Note: Sentence.

Ninth Cir held that 207(a) is not a CIMT.⁴³The 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 (9th Cir. 2013). Section 207(e) also includes very minor conduct.

If it is not a COV, it is not a deportable crime of DV. But see Advice. If it is critical to avoid deportability, consider non-COV offenses such as e.g., PC 32, 243(e), 136.1(b)(1), 459/460(a) or (b), 487, probably 236/237, etc.
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 abuse.

COV. For citations and further discussion of Dimaya, Stokeling, Borden, and the definition of COV in general, see this endnote.⁴⁴Definition 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 (although ICE might assert that recklessness now should be included; see Voisine, below). 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.

Dimaya and 18 USC § 16(b). 18 USC § 16 has two parts: § 16(a) and § 16(b). In 2018, the Supreme Court held 18 USC § 16(b) is unconstitutionally vague and can no longer be used. Sessions v. Dimaya, 138 S. Ct. 1204 (2018), upholding Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). Section 16(b) states that a felony offense is a COV if “by its nature” it involves a “substantial risk” that violence could be used (often, based on what judges thought might happen in an “ordinary case”). With § 16(b) gone, some felony offenses that used to be classed as COVs no longer are. This includes offenses such as felony Pen C §§ 207(a), 243.4, 460(a), 33215 and others, and it bolsters existing arguments that offenses such as Pen C §§ 236/237(a) and 243(d) are not COVs. See also Pen C 136.1(b)(1), 243(e), 460(b), and see discussion of crimes of DV at Pen C § 245 in the chart.

For a more extensive discussion of how these and other California offenses are changed by Dimaya, see this advisory (written before Dimaya, but analyzing what would happen if § 16(b) were to be struck down): ILRC, Practice Advisory: Some Felonies Should No Longer Be Crimes of Violence for Immigration Purposes under Johnson v. United States (2015), available at www.ilrc.org/crimes.

For a discussion of the Dimaya decision, including how to assist people whose conviction no longer are classed as COVs, see NIPNLG and IDP, Sessions v. Dimaya: Supreme Court strikes down 18 USC § 16(b) as void for vagueness (2018), available at http://nipnlg.org/practice.html.

For a discussion of COVs and the domestic violence deportation grounds, see ILRC, Case Update: Domestic Violence Deportation Ground (2018) at www.ilrc.org/crimes.

Stokeling and overcoming the victim’s will. The Supreme Court revisited the definition of conviction in Stokeling v. U.S., 139 S.Ct. 544 (2019). The 5/4 majority found that Florida robbery is a crime of violence (COV) under the ACCA, because “overcoming the resistance of the victim” in a robbery involves a confrontation that is inherently violent, even though it can be committed using a very small amount of force. “For example, a defendant who grabs the victim’s fingers and peels them back to steal money commits robbery in Florida. But a defendant who merely snatches money from the victim’s hand and runs away has not committed robbery.” The majority found that the first example is a COV, due to the (minor) force used and the nature of the confrontation, while the second is not.

The majority specifically distinguished this type of “overcome the resistance of the victim” offense from offenses such as battery. It stated that Stokeling is consistent, and not in conflict, with Johnson v. United States, 559 U. S. 133 (2010), where the Court had held that battery committed with de minimus force is not a crime of violence. “The nominal contact that Johnson addressed involved physical force that is different in kind from the violent force necessary to overcome resistance by a victim. The force necessary for misdemeanor battery does not require resistance or even physical aversion on the part of the victim; the “unwanted” nature of the physical contact itself suffices to render it unlawful.” Stokeling at 553.

Based on Stokeling, California robbery, Pen C § 211, will likely be charged as a COV. No conviction of Pen C § 236/237 ought to be a crime of violence: the minimum conduct required to commit felony false imprisonment by force, taken alone, might be found a crime of violence, but the offense is indivisible between force and the other means: menace (which can be committed by non-violent threat of arrest), deceit, and fraud. The latter three means are not crimes of violence. Likewise, kidnapping under Pen C § 207(a), felony false imprisonment under §§ 236/237, and sexual battery under § 243.4 can be committed by threat of arrest rather than threat of force. But until there is precedent holding that these offenses are not COVs under Stokeling, ICE might charge them as COVs, so best practice is to get 364 days or less where possible. See discussion at endnotes to each of these offenses. (Pen C § 207 is discussed in the next endnote.)

Borden (formerly Walker), Voisine, and Recklessness. Courts have long held that an offense with an element of recklessness is not a crime of violence, but this could change as the Supreme Court takes up the issue in Borden v. United States (19-5410). (The issue had been presented in Walker v. United States, No. 19-373, but the case was withdrawn after Mr. Walker’s death.) The Court will hear argument in November 2020. If it finds that reckless conduct can be a COV, then California offenses such as Pen C § 192(a) or § 246 could be affected. Earlier the Court held that recklessness could be an element of a different federal definition, for a federal crime of domestic violence, but it had specifically stated that this offense was not the same as 18 USC § 16. See discussion of Voisine v. United States, 136 S.Ct. 2272 (2016), in NIPNLG/IDP, Practice Alert: Voisine v. United States (2016), available at http://nipnlg.org/practice.html.

For citations and further discussion of PC 207 as a COV, see this endnote.⁴⁵Pen C § 207 as a COV. The Ninth Circuit held that Pen C § 207(a) is not a crime of violence (COV) under 18 USC § 16(a) because it lacks as an element the use of violent force and can be committed by “any means of instilling fear,” including means other than force. Delgado Hernandez v. Holder, 697 F.3d 1125, 1127 (9th Cir. 2012). The court also cited precedent holding that kidnapping by fraud under § 207(d) does not meet the § 16(a) definition. See United States v. Lonczak, 993 F.2d 180, 183 (9th Cir. 1993), considering a federal standard identical to 18 USC § 16(a), cited at Delgado-Hernandez, 697 F.3d at 1128. The Supreme Court struck down the definition of a COV under 18 USC § 16(b). See discussion of Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in above endnote.

Arguably Pen C § 207(a) is not a COV under Stokeling v. U.S., 139 S.Ct. 544 (2019), discussed in the above endnote. Stokeling held that, due to the nature of the confrontation, use of even minor force to overcome the will of the victim in a robbery is a COV. Kidnapping can involve overcoming the will of the victim, but California kidnapping can be committed by threat of conduct that involves no force or threat of force, for example the threat of arrest. See, e.g., People v. Majors (2004) 33 Cal.4th 321 (threat of arrest satisfies force or fear requirement for kidnapping). See further discussion of Pen C § 207(a) kidnapping and 18 USC § 16(a) (written before Stokeling) in ILRC, Crimes of Violence and Johnson v. United States (August 2016) at www.ilrc.org/crimes.

A COV is defined in 18 USC 16(a) only, because the Supreme Court struck down 16(b) in Dimaya. Under 16(a), a COV must have as an element the use, threat, or attempt to use force, interpreted as violent, intentional force. The Ninth Circuit held that PC 207(a) and (d) do not meet this definition.

But in Stokeling (2019), the Supreme Court held that robbery is a COV if it has as an element the use of even minor force to “overcome the will of the victim,” because that confrontation is inherently violent. ICE might charge 207(a) as a COV under Stokeling. Because 207(a) can be committed by the threat of arrest, which involves no use or threat of force, imm advocates have a strong argument that it is not a COV under Stokeling. But this has not yet been litigated, so the best practice is to avoid the risk by getting 364 days or less on each count. (Note that Stokeling stated it does not change the COV analysis of assault and battery, so the analysis of 243 and similar offenses should not change.)

The Supreme Court will consider whether reckless conduct is a COV, in Borden v. United States (19-5410), with oral argument in November 2020. That might make, e.g., PC 246, 192(a), or VC 23104, 23105, etc. an AF if a year or more is imposed.

If one year or more on a single count can’t be avoided, safer offenses include, e.g., 459 (res or commercial), 487, 591, 594, or a 364-day sentence on 243(e). 243(d) has been held a COV and cannot take a year.

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.

Robbery by means of force or fear

Get 364 or less to avoid AF as theft and perhaps as a COV.⁴⁶Matter of Delgado, 27 I&N Dec. 100 (BIA 2017); United States v. Martinez-Hernandez, 912 F.3d 1207 (9th Cir. 2019) (Pen C § 211 is an AF as theft under 8 USC 1101(a)(43)(G) if a year or more is imposed).

Pen C § 211 also might be charged as an AF as a COV under 8 USC 1101(a)(43)(F). The Ninth Circuit in U.S. v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) held that Pen C § 211 is not a COV under a definition identical to 18 USC § 16(a), because the use of force can be by accident. However, ICE may charge Pen C § 211 as a COV after the Supreme Court’s decision in Stokeling v. U.S., 139 S.Ct. 544 (2019), which suggests that any force that is used to “overcome the resistance of the victim” in a robbery constitutes a COV. See discussion at Pen C § 207, above. This may not have much practical consequence for Pen C § 211, however, since a sentence of one year or more already makes it an AF as a theft offense. See Advice.

Defenders must assume it is a CIMT.

Imm advocates can consider arguments that it is not a CIMT.⁴⁷Immigration 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 minimus 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 under Silva v. Barr, 965 F.3d 724, 731 (9th Cir. 2020), 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 at PC 484, below. As always, while litigating this untried argument, advocates should investigate other defense strategies including the possibility of post-conviction relief.

Assume it is a deportable crime of DV if V and D share a protected relationship.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

To avoid an AF, avoid a one-year sentence imposed. Consider plea to 487 or 459/460 (can take more than a yr) and/or, e.g., 136.1(b)(1), 243(d), 245(a), or similar with less than a year.

Note: if DA demands strike/s plus more than 1 year, one can offer 459/460 or 487 for over a year (which is not an AF) and felony 136.1(b)(1) as the subordinate (in order to get an 8-month sentence, because this might be held an AF with a year), or if needed see felony 236/237. This should permit prison, avoid an AF, and the only CIMT is the 487.

Carjacking

Get 364 or less on each count.

Conservatively assume a CIMT, although imm advocates may argue that it is not.

Do not plead to this offense if V and D share a domestic relationship, because it might now be charged as a COV under Stokeling.⁴⁸Regarding theft, see Pen C § 211. Regarding COV, Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018), held that Pen C § 215 is not a COV under 18 USC § 16(a), because a person need not use more force than that required to move the vehicle. Because the BIA did not rule on the immigration judge’s alternative holding that the offense is an aggravated felony as “theft,” the court did not address this question, but remanded to the BIA for it to consider the issue in the first instance. It is possible that the government will bring the COV issue up again in light of the Supreme Court opinion in Stokeling v. U.S., 139 S.Ct. 544 (2019). The majority in Stokeling held that a Florida robbery offense is a COV because by its nature, the confrontation required to “overcome the resistance of the victim” is inherently violent, even if the force used to do that is de minimus. Immigration counsel can examine arguments that Pen C 215 does not require overcoming the will of the victim by force. See, e.g., discussion of People v. Hudson, 11 Cal. App. 5th 831 (Ct. App. 2017) (carjacking was accomplished when defendant drove the car off of a car lot, despite the owner running after him and pounding on the car) in Solorio-Ruiz v. Sessions, 881 F.3d at 737.

Although Ninth Cir held not an AF as COV, the BIA will likely rule it is an AF at least as theft, so avoid 1 yr or more. See § N.4 Sentence.

Assault, with intent to commit rape, mayhem, etc.

Get 364 or less on each count to avoid AF as COV.
Assault with intent to rape might be AF as attempted rape regard-less of sentence.
See Advice

Yes CIMT

Yes, DV if V has domestic relationship.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

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.

False imprisonment (misd)

Great plea.
Not an AF as a COV, plus maximum exposure is 364 days

Not a CIMT⁴⁹Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. 2010).

Not a COV, and therefore not a deportable DV offense
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

This is a 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.

Assault

Not an AF: Not a COV, plus maximum sentence is less than 1 year

Not CIMT⁵⁰See, 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)

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.

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,⁵¹Deportable 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, Case Update: Domestic Violence Deportation Ground (2018) at www.ilrc.org/crimes.

Some but not all offenses with minor age as an element are held to be deportable crimes of child abuse. For example, Pen C § 273a(a) will be charged as a deportable crime of child abuse (but immigration advocates can contest this), while the BIA has stated that § 273a(b) is not. See Matter of Mendoza Osorio, 26 I&N Dec. 703, 710 (BIA 2016).  Attorney General Barr has requested amicus briefing on the issue of whether an offense such as Pen C § 261.5(c) is a crime of child abuse; see https://www.justice.gov/eoir/page/file/1215241/download

Police posing as minors. The BIA held that the generic definition of a deportable crime of child abuse under 8 USC 1227(a)(2)(E)(i) 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), citing 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”).

Age-neutral offenses. Under the categorical approach, an age-neutral offense—e.g., battery under Pen C § 243(a)—never can be a deportable crime of child abuse. The problem is that immigration judges or officers may not know this, due to an older BIA decision that misapplied the categorical approach and held that if the record of conviction conclusively shows that the victim was under age 18, it can qualify. See Matter of Velazquez-Herrera, below. Immigration advocates should be prepared to explain the law, and criminal defenders should do their best to avoid the whole issue by keeping information about minor age out of the defendant’s record of conviction (the charge pled to, plea colloquy and written plea agreement, judgment, and any factual basis for the plea admitted by the defendant).

The explanation is: The categorical approach governs whether an offense is a deportable crime of child abuse. See, e.g., Velazquez-Herrera, 24 I&N Dec.503 (BIA 2008); Martinez-Cedillo v. Sessions, 869 F.3d 979 (9th Cir. 2018). In Velazquez-Herrera the BIA held that a simple battery statute, which had no element relating to age, was “divisible” under the categorical approach. The BIA held that if information in the record of conviction establishes that the victim was under age 18, the conviction is a deportable crime of child abuse. However, this aspect of Velazquez-Herrera has been overruled by subsequent U.S. Supreme Court decisions that discuss when a statute is “truly” divisible—rulings that the BIA has adopted. These decisions make clear that a statute is divisible only if it sets out multiple statutory alternatives that are different offenses, and the elements of at least one of these offenses matches the generic definition at issue. See discussion of Mathis v. United States, 136 S. Ct. 2243 (2016) and Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) at n.4, above, and see ILRC, How to Use the Categorical Approach Now (2018) at www.ilrc.org/crimes. Because an age-neutral statute has no element (or even statutory language) requiring minor age, it is not divisible and never can be a deportable crime of child abuse for any immigration purpose, regardless of information in the record.

Remember that to cause deportability under this ground, a conviction must be after September 30, 1996 and after the person was admitted into the United States. For further discussion of crime of child abuse see ILRC, Case Update: Domestic Violence Deportation Ground (2018) at www.ilrc.org/crimes. but a sanitized ROC clean will protect D against error.

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.⁵² 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).

These sections must be evaluated solely based on the minimum prosecuted conduct, because they are not divisible. Prior precedent holding such statutes to be divisible has been overturned by the Supreme Court. See n. 4, above, and 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 minimum conduct is not a crime of violence, no conviction of the offense is a crime of violence); Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). The phrase “force or violence” is a term of art that does not set out alternative types of conduct. See, e.g., Ortega-Mendez, supra.) This also applies to 243(e).

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.

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.
(c) should not be held a CIMT,⁵³A CIMT occurs if there is intent to cause great bodily harm. Section 243(c) is a general intent crime that can be caused by a harmful or offensive touching and does not require intent to harm, cause injury, or break the law. See CALCRIM 945. California battery with injury offenses focus on the resulting injury, even if the defendant caused it negligently. See, e.g., People v. Hayes, 142 Cal. App. 4th 175, 180 (Cal. App. 2d Dist. 2006) (defendant who kicked over large ashtray which hit officer is guilty of § 243(c)(2) even if he believed it would not hit the officer). For that reason, similar offenses such as Pen C § 243(d) have been held not to involve moral turpitude. But note that in U.S. v. Perez (9th Cir. July 1, 2019) the court (wrongly) held that the minimum conduct to commit 243(d) is violent force, and therefore the offense is a COV. See further discussion at Pen C § 243(d). but might wrongly be charged; See Advice.

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).⁵⁴Considering 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.

Battery with serious bodily injury

To avoid AF as COV get 364 days or less on each count. See § N.4 Sentence.
But see Advice.
If you must plead, try to plead specifically to an offensive touching.

Assume it will be held a CIMT due to the (arguably incorrect) holding in Perez that the minimum conduct involves use of violent force.
But it should not be so held, and imm advocates can contest.⁵⁵ Section 243(d) should not be held a CIMT because, although it is a battery resulting in serious injury, it can be committed by a touching that was neither intended nor likely to cause such an injury. However, the Ninth Circuit held (arguably incorrectly) that the minimum conduct involves actual violence and therefore it is a COV. See discussion of US v. Perez, 932 F.3d 782 (9th Cir. 2019) at next endnote. Because of Perez, ICE may assert that this is a CIMT. Immigration advocates should fight this, but criminal defenders may need to seek another offense, e.g., 136.1(b)(1) of 459/460(a) if a strike is needed. See also Practice Advisory on U.S. v. Perez and § 243(d) and www.ilrc.org/crimes.
CALCRIM 925 provides that § 243(d) requires a touching only in a “harmful or offensive manner…. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.” The statute’s purpose is to punish based on the injury caused, not the level of force; it punishes even non-violent force that for some reason results in injury. For this reason, it was held not to be a CIMT for state purposes. People v. Mansfield, 200 Cal. App. 3d 82, 88 (Cal. App. 5th Dist. 1988) (not a CIMT because “the least adjudicated elements of battery resulting in serious bodily injury do not necessarily involve force likely to cause serious injury” (emphasis in original)). See also People v. Hopkins, 78 Cal. App. 3d 316, 320-321 (Cal. App. 2d Dist. 1978) and discussion in above endnote.
The BIA recognized that § 243(d) is not a CIMT. See Matter of Muceros, A42 998 610 (BIA 2000) Indexed Decision. (BIA “Indexed” decisions are not precedent decisions but are intended to provide guidance to government. Formerly, Indexed decisions were available to the public on the BIA website). Muceros held that because the minimum conduct to commit Pen C § 243(d) is touching without intent, it is not a CIMT. Muceros was cited in Uppal v. Holder, 605 F.3d 712, 718-719, 718-719 (9th Cir. 2010), holding that a Canadian statute that did not require intent to harm similarly is not a CIMT.
Try to plead specifically to an offensive touching causing injury. If it is critical to avoid a CIMT, plead to a different offense.

Assume this is a COV and thus a deportable DV offense if V is protected under state DV laws. See Advice.
Pleas to avoid DV are 32, 136.1(b), 236/237, 243(e), 591, or 594. Or, plead to 243(d) against a non-protected V (neighbor, ex-wife’s new boyfriend, etc.) with a sentence imposed of less than a year. See discussion at PC 245.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

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.

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.⁵⁶ 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.

This is a flawed decision that advocates will fight, but it is the law now. For further discussion, including preliminary suggestions for bases for appeal in immigration proceedings, see ILRC, Practice Advisory: Fighting U.S. v. Perez-Ninth Circuit holds PC 243(d) is a COV (Aug. 6, 2019) at www.ilrc.org/crimes. Defense counsel should obtain a plea other than § 243(d). Immigration advocates should contest the decision and preserve the issue on appeal, and contact ILRC if they would like assistance.

In sum, the definition of COV at 18 USC § 16(a) requires that the threat or use of force—meaning violent force—must be an element of the offense. See, e.g., Johnson v. U.S., 559 U.S. 133 (2010); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006); Matter of Guzman-Polanco, 26 I&N Dec. 806, 807 (BIA 2016) where the BIA stated that under Johnson, “a statute that covers any application of physical force, however slight, that may cause physical injury” cannot be held a crime of violence.)

In Perez the panel disregarded analysis in multiple California precedent decisions finding that the minimum conduct for § 243(d) is minimal, non-violent force that nevertheless ends up causing an injury. See, e.g., People v. Hopkins, 78 Cal. App. 3d 316, 320-321 (Cal. App. 2d Dist. 1978), where the court relied on the plain meaning of the statute and found that the legislature created Pen C § 243(d) to have this minimum conduct, in order to fill a gap in the law; People v. Marshall (1987) 196 Cal. App. 3d 1253, 1260, where the court refused to limit section 243(d) to use of violent force, and found that it reaches even an innocuous touching that ends up causing injury; and People v. Mansfield (1988) 200 Cal.App.3d 82, 88-89, which held that § 243(d) is not a crime involving moral turpitude under state law, based upon the fact that it can be committed by an offensive touching. “The average person walking down the street would not believe that someone who [merely] pushes another is a culprit guilty of moral laxity or ‘general readiness to do evil,’ even if the push was willful and results in serious injury.” People v. Mansfield (1988) 200 Cal.App.3d 82, 88-89. See also CALCRIM 925.

The court disregarded these California decisions on the grounds that they did not themselves involve an instance of use of minimal force. It apparently was unaware of other cases where § 243(d) has been used to prosecute conduct involving minimal force that causes injury. See, e.g., People v. Myers, (1998) 61 Cal. App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant “shoved” a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured). See also People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officer’s leg causing a cut and bruising; guilty of Pen C 243(c)(2)).

The Perez team did not submit these critical cases to the court for the original decision, and the court denied petitions for rehearing. However, advocates can submit these cases in new decisions and courts must take notice of them.

The Perez panel also cited Stokeling v. United States, 139 S.Ct. 544 (2019), although Stokeling specifically provides that its standard does not apply to a battery by an offensive touching. See discussion of Stokeling in the practice advisory on Perez cited above, and see also ILRC, Practice Advisory: Stokeling v. United States: Supreme Court Defines Crime of Violence (January 2019) at www.ilrc.org/crimes.

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.

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.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

Excellent immigration plea: extensive case law holds that because minimum conduct is an offensive touching, it is never a COV or CIMT.⁵⁷Section 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). 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 at n. 4, above. 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.

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.⁵⁸Pen 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., 136.1(b)(1), 594) if the V and D share a protected relationship, in order to avoid 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.

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).

Ninth Cir in the past held 243.4 is not a COV under 18 USC 16(a) because the touch can be ephemeral and the restraint imposed by psychological means, including the threat of arrest. Immigration advocates have a strong argument that for this reason, it also is not a COV under the 2019 Stokeling decision.⁵⁹ Pen 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).

The fact that the restraint can be accomplished with no use of force, including threat of arrest, should overcome a charge that this is a COV under Stokeling v. U.S., 139 S.Ct. 544 (2019. There Supreme Court held that an offense that has as an element overcoming the resistance of a victim by use of force is a COV, even if the force can be quite minor. Arguably an offense that requires no physical force cannot be a COV under 18 USC 16(a), however. See discussion of Stokeling at Pen C 207, above. 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.

“Gassing” of a peace officer or employee by a detainee

Not an AF: Not a COV, and maximum 364 days punishment

The intent is more to offend and annoy rather than cause serious injury, so arguably not a CIMT

No other removal ground

Gassing is defined at PC 243.9(b) as throwing feces, urine, or bodily fluids that touch another person’s skin.

Assault with a deadly weapon (firearm or other) or with force likely to cause great bodily injury

Get 364 or less to avoid an AF as COV.⁶⁰See, e.g., U.S. v. Vasquez-Gonzalez, 901 F.3d 1060 (9th Cir. 2018), United States v. Jimenez-Arzate, 781 F.3d 1062 (9th Cir. 2015). Assume all subsections are a COV.

Ninth Circuit held it is a CIMT.⁶¹The 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, No. 16-74039, 2020 WL 5553321 (9th Cir. Sept. 17, 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).

Can be deportable crime of DV; 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 is a deportable firearms offense. See PC 246.
But to avoid any error, a safer plea is to 245(a)(1) or keep ROC clear of evidence that offense was (a)(2), (3).

Crime of domestic violence. Because PC 245 is a COV, it is a deportable crime of DV if there is sufficient evidence that V and D shared a relationship protected under state DV laws.

To avoid a deportable crime of DV:

-Plead to a COV such as PC 245, 243(d), but against a V without protected status (e.g., neighbor, police, ex-wife’s new boyfriend) or against property (e.g., PC 591, 594). Get 364 days or less imposed on each count.

-Plead to a non-COV, e.g., PC 32, 136.1(b)(1), 243(e), 236/237, 459, 487, against a V with protected status. Some of these can take a sentence of a year.

-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.⁶²Deportable crime of domestic violence. 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. For further discussion see ILRC, Case Update: Domestic Violence Deportation Ground (2018) at www.ilrc.org/crimes.

Misd is a “significant misdemeanor” for DACA if committed against DV-type victim, but PC 1203.4 might eliminate. See PC 25400.

Willfully discharge firearm at inhabited building, etc.

Previously held to not be COV because it involves recklessness, but Supreme Court could change this; see Advice.
Therefore, try very hard to get 364 days or less on each count, or plead to another offense, to avoid an AF as a COV.

Yes, assume CIMT.⁶³See Matter of Muceros, (BIA 2000), Indexed Decision, supra.

Not a deportable firearms offense; see Advice.
If the law changes and this is held a COV, it is a potential DV offense (if it can have a specific human “victim”).

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.⁶⁴Conviction 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. Courts have long held that a crime of violence requires more than reckless intent; thus the Ninth Cir held that 246 is not a COV. But the Supreme Court will decide the recklessness/COV issue in Borden v. United States, with argument in November 2020.⁶⁵In Covarrubias-Teposte v. Holder, 632 F.3d 1049, 1054-55 (9th Cir. 2011), the court held that because Pen C § 246 is committed by recklessness it is not a crime of violence. The opinion by Judge Gould (with Judges O’Scannlain and Ikuta) also criticized the precedent that precludes all reckless offenses from being a COV. The Supreme Court will consider whether recklessness can amount to a COV in Borden v. United States (19-5410) (formerly Walker v. United States.) The Court will hear argument in November 2020. It will decide whether the definition of a COV in the ACCA, which is basically identical to the immigration definition of COV at 18 USC § 16(a), includes reckless conduct. Pending this decision, defenders must conservatively assume that recklessness can amount to a COV. See further discussion of the COV definition at the endnote to Pen C § 207, above. Therefore, defenders should conservatively assume 246 could be a COV and be an aggravated felony if 1 year or more is imposed, and conceivably a DV offense.

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 but 1203.4 might help; see note at PC 25400.

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.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

The Ninth Circuit held that 246.3, committed by gross negligence, is not a COV. This should not be affected by the pending Supreme Court case, Borden (see Advice to 246), which will decide if recklessness is a COV.⁶⁶See 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). In contrast to Pen C § 246,  section 246.3 should not be controlled by the pending Supreme Court case, Borden (see endnote above), which has to do with whether recklessness is a COV. “Gross negligence” in § 246.3 does not require recklessness, a conscious disregard of a known risk. See, e.g., People v. Overman (2005) 126 Cal.App.4th. Thus, even if the Supreme Court decides that the definition of crime of violence at 18 USC § 16(a) includes recklessness, it appears that this won’t affect § 246.3. 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.

Rape

Yes AF, regardless of sentence.⁶⁷ See, e.g., Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000), finding that 261(a)(3) is the AF rape.
The BIA held that rape encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. It requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement that the victim’s ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment. Matter of Keely, 27 I&N Dec. 146 (BIA 2017).

Yes CIMT

To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
A plea to a COV such as PC 245, 243(d), will be a deportable crime of DV if the V and D had a dating or other relationship covered by DV laws.

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.

Sex with minor under age 18, if D is at least 3 years older

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 because of Esquivel discussion.

But immigration advocates can cite existing Ninth Circuit precedent that it is not.

While there have been reports are that this is not being charged as deportable child abuse crime, 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.

Bad plea. See endnote for discussion and citations.⁶⁸Pen 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, 137 S. Ct. 1562 (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.

Pen C § 261.5(d) as a CIMT. This also is risky. The Ninth Circuit held that the minimum conduct to commit § 261.5(d) is not a CIMT because it is not necessarily harmful to a 15-year-old. Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007). But the court might reconsider this holding at some point, based on two decisions. First, the court might be influenced by the Supreme Court’s decision in Esquivel-Quintana, above, which held that sex with a person at least age 16 or over is not the aggravated felony “sexual abuse of a minor,” which is read as implying that it is SAM if the minor is younger. While the definition of sexual abuse of a minor and moral turpitude are not the same, the Ninth Circuit might decide that the implied characterization of sex with a person under the age as involving “abuse” means that it is reasonable to conclude that it is a CIMT.

Second, the BIA held that sex with a minor is a CIMT if the minor either is under the age of 14, or is under the age of 16 and the offense requires a significant age difference. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA April 6, 2017), reaffirmed on remand from the Fourth Circuit (Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir. 2018)) at Matter of Jimenez-Cedillo, 27 I&N Dec. 782 (BIA 2020). The BIA held that this is a CIMT even if the offense does not require knowledge that the victim was a minor. At least in the Fourth Circuit, the BIA will apply this aspect of the rule (the unusual lack of a knowledge requirement in a CIMT definition) prospectively only, which appears to mean to convictions that occurred on or after April 6, 2017. It stated that because the Fourth Circuit “specified that our decision represents a change in position and that our “prior policy may have ‘engendered serious reliance interests’ in aliens [such as the respondent,] who pled guilty to certain sexual offenses under the Silva-Trevino regime,” we will apply it prospectively in this circuit….  We will not decide the question of retroactivity in other circuits at this time.” Jimenez-Cedillo, 27 I&N Dec. at 784. To the extent 261.5(d) does not require knowledge that the victim was under-age, advocates can argue that pre-April 6, 2017 convictions should not be held CIMTs.

Crime of Child Abuse. The Ninth Circuit held that a similar offense, Wash Rev Code § 9A.44.089, sexual contact (touching intimate parts for purpose of sexual gratification) with a person age 14 or 15 by someone at least two years older, is a crime of child abuse. Jimenez-Juarez v. Holder, 635 F.3d 1169 (9th Cir. 2011). Under that test, 261.5(d) also is. (But see discussion in Quintero-Salazar v. Keisler, supra, concluding that such conduct is not harmful to the minor.) Instead, try hard to plead to felony 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.

Re DACA, see 261.5(c)

Sex with minor under age 16, if D is at least age 21

Conservatively treat 261.5(d) as an AF as SAM.
Immigration advocates can cite existing Ninth Circuit precedent to the contrary. See Advice.

Assume 261.5(d) may be held CIMT in future, although 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.⁶⁹Pen 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, 137 S. Ct. 1562 (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.

Pen C § 261.5(d) as a CIMT. This also is risky. The Ninth Circuit held that the minimum conduct to commit § 261.5(d) is not a CIMT because it is not necessarily harmful to a 15-year-old. Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007). But the court might reconsider this holding at some point, based on two decisions. First, the BIA held that sex with a minor is a CIMT if the minor either is under the age of 14 or is under the age of 16 and the offense requires a significant age difference. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017). But see Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir. 2018), where the court remanded the case to the BIA based on a finding that the BIA failed to provide a reasoned explanation for its change in position—that it no longer required knowledge that the victim was under-age and thus, such decision was arbitrary and capricious. Section 261.5(d) meets the BIA’s definition in Jimenez-Cedillo, and the Ninth Circuit might decide to defer to the Board on the issue. But to the extent 261.5(d) does not require knowledge that the victim was under-age, there might be an argument against it, similar to the Fourth Circuit’s. Second, the court might be influenced by the Supreme Court’s decision in Esquivel-Quintana, above, which held that sex with a person at least age 16 or over is not the aggravated felony “sexual abuse of a minor.” While the definition of sexual abuse of a minor and moral turpitude are not necessarily the same, the Ninth Circuit might decide that the implied characterization of sex with a person under the age as involving “abuse” means that it is reasonable to conclude that it is a CIMT.

Crime of Child Abuse. The Ninth Circuit held that a similar offense, Wash Rev Code § 9A.44.089, sexual contact (touching intimate parts for purpose of sexual gratification) with a person age 14 or 15 by someone at least two years older, is a crime of child abuse. Jimenez-Juarez v. Holder, 635 F.3d 1169 (9th Cir. 2011). Under that test, 261.5(d) also is. (But see discussion in Quintero-Salazar v. Keisler, supra, concluding that such conduct is not harmful to the minor.)

To avoid possible SAM AF, a far better plea is to 261.5(c) and/or to 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), 314, 459/460(a) or (b), 647.6. D can take sex offender registration without the offense becoming SAM.

To ensure age-neutral offenses listed above are not wrongly charged as deportable crimes of child abuse, do not let ROC indicate minor age

Re DACA, see 261.5(c)

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.
Adam Walsh Act. When V is a minor, 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.

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.⁷⁰Regarding 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 n. 4, above.

An additional aggravated felony is 8 USC § 1101(a)(43)(K)(i), relating to the “owning, controlling, managing or supervising a prostitution business.” More research is required to determine if Pen C § 266 would meet the definition. Immigration advocates may argue that § 266 is overbroad for this purpose, because it includes trying to encourage a single person to become a prostitute. People v. Zambia (2011) 51 Cal.4^th 965. Arguably arranging or trying to arrange a single encounter (and with no element of financial benefit to the arranger) does not rise to the level of managing a prostitution business. Defenders should conservatively assume it is an aggravated felony. However, even if commercial benefit is not an element of Pen C 266, immigration officers can prove there was a commercial element using evidence from outside the record of conviction under the circumstance specific approach. See n. 4, above.

The defense that this offense is not an aggravated felony because it involves procuring persons for lewd acts, as opposed to solely for sexual intercourse, is not secure. For inadmissibility purposes, “prostitution” is defined as “engaging in promiscuous sexual intercourse for hire,” not lewd conduct for hire. 22 C.F.R. § 40.24(b). See Matter of Ding, 27 I&N Dec. 295 (BIA 2018). Courts have applied the same requirement of sexual intercourse to the aggravated felony, 8 USC § 1101(a)(43)(K)(i), relating to the “owning, controlling, managing or supervising a prostitution business.” See, e.g., DePasquale v. Gonzales, 196 Fed.Appx. 580, 582 (9th Cir. 2006) (unpublished) (prostitution under Hawaiian law); Prus v. Holder, 660 F.3d 144, 146-147 (2d Cir. 2011) (New York offense); see also Familia Rosario v. Holder, 655 F.3d 739, 745-46 (7^th Cir. 2011) (government, IJ and BIA agree that importation of persons for purposes of prostitution is an aggravated felony under 8 USC § 1101(a)(43)(K)(i), while importation for other immoral purposes is not).

However, in Ding, above, the BIA distinguished the definition of prostitution for the purposes of the inadmissibility ground and the aggravated felony under 1101(a)(43)(K)(i). For the purposes of the aggravated felony, prostitution is defined as “sexual conduct in exchange for something of value.” The Ninth Circuit might decide to accept this definition.

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.

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

Contribute to the delinquency of a minor

Not AF, although as always try to keep ROC free of lewd acts

Not CIMT⁷¹See, 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.⁷²In 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.

Child, Corporal Punishment

Get 364 days or less to avoid an AF as COV.
See § N.4 Sentence.

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).

Spousal Injury

Get 364 days or less on any single count to avoid AF as a COV.⁷³See, 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, but has failed in the past.

Ninth Circuit held not CIMT if V is former co-habitant,⁷⁴Morales-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).

See ILRC, Case Update: Domestic Violence Deportation Ground (June 2018) at www.ilrc.org/crimes.

To avoid COV and DV, see PC 32, 243(a), (e); 236/237; 136.1(b)(1); 459, 591, 594, and others; do not plead to 243(d). 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.)

CIMT. Ninth Cir held that this is not a CIMT where V is “cohabitant” but best practice is to not rely on this if it is necessary to avoid a CIMT, since the BIA has not yet spoken and the Ninth could withdraw.⁷⁵The Ninth Circuit states that it will defer to a “reasonable” precedent BIA decision as to what conduct constitutes a CIMT, including withdrawing its own prior precedent. Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). It is possible that in the future BIA might publish a decision finding that § 273.5 is a CIMT even if the victim is an ex-cohabitant, and the Ninth Circuit might defer. A California court held that § 273.5 always is a CIMT for state purposes, despite Morales-Garcia, but this is not binding for immigration purposes. See People v. Burton (2015) Cal. App. 4th Dist. Dec. 18. More secure pleas to avoid a CIMT are, e.g., 136.1(b)(1), 236, 243(a), (d), (e), 460, 591, 594, etc. If pleading to 273.5, plead to co-habitant or dating or ideally former co-habitant.

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.⁷⁶Section 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 n. 4, above, regarding the categorical approach. 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, 136 S.Ct. 2243, 2256 (2016) and the categorical approach at n. 4, above.

Misd conviction is a “significant misdemeanor” for DACA, but 1203.4 might erase it; see note at PC 25400.

Violation of protective order

Not AF.

Should not be held CIMT because minimum conduct is not.

Deportable as a violation of a DV protection order if there is evidence, including from outside the ROC, showing that the violation was pursuant to Cal Fam C 6320, 6389 or otherwise violated a DV stay-away or similar DV order.
The categorical approach does not apply here, so ICE can use any evidence to show that the finding related to a violation of a DV stay away order.

Deportable DV finding. A finding of even a minor 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.

In 2019 the Ninth Cir withdrew prior opinions and deferred to the BIA to hold that ICE can use evidence from outside the ROC to prove that a court’s finding of violation of an order pertained to a violation of a portion of a DV protective order meant to protect against threat, injury, or repeat harassment. Such a civil or criminal court finding causes deportability. Counsel should 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 counseling; or could plead to misconduct with a judge (see PC 166(a)(1)-(3)). Or, plead to a new offense that does not involve violation of any order (see pleas suggested at PC 273.5), where the ROC is sanitized of any mention of an order. For best protection, the new offense should be against a V not listed in the order or be a victimless crime, but if that is not possible, plead to any non-deportable offense.

For further discussion and citations, see this endnote⁷⁷Defenders 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.) that protects against threats, injury, or repeat harassment. The violation must be after admission and after 9/30/96.

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 the categorical approach applies to this inquiry and that Pen C 273.6 was a divisible statute. In July 2019 it reversed itself in order to defer to the BIA’s finding that the categorical approach does not apply to this part of the domestic violence deportation ground (8 USC 1227(a(2)(E)(ii), as opposed to (E)(i)), since this part of the ground involves a finding of a violation by either a civil or criminal court judge. See Diaz-Quirazco v. Barr (9th Cir. July 23, 2019), deferring to Matter of Medina-Jimenez, 27 I. & N. Dec. 399 (BIA 2018) and Matter of Obshatko, 27 I&N Dec. 173, 176-77 (BIA 2017) and withdrawing from Alanis-Alvarado v. Holder, 558 F.3d 833, 835, 839-40 (9th Cir. 2009).

This makes mandatory the existing advice that 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. A plea to Pen C § 166(a)(1)-(3) should be safe. 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. and see Case Update: Domestic Violence Deportation Ground (June 2018) at www.ilrc.org/crimes.

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,⁷⁸As 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.

Sexual conduct with a minor

See 261.5(c), (d)

See 261.5(c), (d)

See 261.5(c), (d). To avoid conviction of a crime of child abuse, consider 288.3.

These offenses should have the same consequences as 261.5(c) or (d), based on the statutory age requirement for the minor that applies. Immigration penalties are far greater if the offense requires a minor under age 16 than if it requires a minor under age 18. Offenses such as 286(b)(1), 287(b)(1), and 289(h) require a minor under age 18 and are the better options.

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.⁷⁹Elmakhzoumi 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).

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 banc⁸⁰Since 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 older⁸¹Blandino-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.

Conduct with lewd intent with minor age 14-15 years and 10 years younger than D

SAM. Ninth Cir held not AF as SAM.
Not a COV.

Ninth Circuit held it is not a CIMT, although ICE could argue that it should be held a CIMT under BIA standards. 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.⁸²Section 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.

In United States v. Castro, 607 F.3d 566 (9th Cir. 2010), the Ninth Circuit held that § 288(c) is not sexual abuse of a minor (SAM) because it is not necessarily physically or psychologically abusive. While Castro stated that a court could look to the record of conviction to evaluate this behavior, the U.S. Supreme Court since then has clarified that the standard is the minimum conduct to commit the offense. See n. 4, above. See also U.S. v. Martinez, 786 F.3d 1227, 1229 (9th Cir. 2015) (Wash. Rev. Code § 9A.44.089 is not categorically sexual abuse of a minor).

In Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), the court held that 288(c) is categorically not a crime involving moral turpitude, a crime of child abuse, or a crime of violence.

ICE might assert that the Ninth Circuit should defer to the BIA’s definition, which is that “a sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young–that is, under 14 years of age–or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child.” See Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 784 (BIA 2020), reaffirming Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA April 6, 2017). The Ninth Circuit has committed to giving Chevron deference to reasonable BIA decisions that define what conduct is a CIMT. Two responses to the BIA’s test are (1) that the sexual conduct at issue in Jimenez-Cedillo involved more explicit conduct than § 288(c); and (2) that in any event the BIA’s rule, with its lack of requirement of culpable mental state, should not apply to convictions from before April 6, 2017, when the rule was first announced in the first Jimenez-Cedillo decision. The BIA agreed to this condition in the Fourth Circuit, stating that because the Fourth Circuit “specified that our decision represents a change in position and that our “prior policy may have ‘engendered serious reliance interests’ in aliens [such as the respondent,] who pled guilty to certain sexual offenses under the Silva-Trevino regime,” we will apply it prospectively in this circuit….  We will not decide the question of retroactivity in other circuits at this time.” Jimenez-Cedillo, 27 I&N Dec. at 784. Section 288(c)(2) has no defense for lack of knowledge of age.

The Ninth Circuit previously held 288(c) is not an AF as sexual abuse of a minor (SAM).

In the 2018 Menendez decision, the Ninth Circuit held it is not a CIMT, crime of child abuse, or crime of violence. ICE might assert otherwise; see endnote above.

Other options include PC 32, 136.1(b), 236/237, 243, 243.4, 273a(b), 314, 459, 647, 647.6, etc. For the above offenses that are age-neutral, provide extra protection 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.

Sexual penetration by force or duress

Assume AF as rape, regardless of sentence, but see Advice.
Arguably not an AF as a COV. See Advice.

Yes CIMT

If it is a COV, it is a deportable crime of DV if V and D share a protected relationship.
Not child abuse even if a minor V, because age is not an element. Still, do not let the reviewable record (charge, plea colloquy, factual basis, judgment) reflect the age of a minor victim

Rape. The BIA held that the generic definition of rape includes any penetration, including digital or mechanical, which 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 PCR while pursuing this.⁸³Advocates 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.

COV. This should not be a COV because it can be committed by psychological duress not based on threat of force or violence.⁸⁴The Ninth Circuit held that Pen C § 289(a) is not a COV under a standard nearly identical to 18 USC § 16(a), because it could be committed by “duress,” which need not involve any force or the threat of force. U.S. v. Espinoza-Morales, 621 F.3d 1141, 1147-48 (9th Cir. 2010). To illustrate this, the court cited to People v. Minsky, 105 Cal. App. 4th 774, 129 Cal. Rptr. 2d 583, 584-85 (Cal. Ct. App. 2003), review granted and then dismissed, 23 Cal. Rptr. 3d 694, 105 P.3d 115 (2005), where the defendant “was convicted under section 289(a) for posing as a lawyer and tricking women into believing that a loved one had just been arrested and was facing mandatory jail time for a hit-and-run, and then posing as the hit-and-run victim or witness and offering to drop the charges or to refuse to testify if the woman submitted to sex acts.” It also cited to People v. Cardenas, 21 Cal. App. 4th 927, 26 Cal. Rptr. 2d 567, 568 (Cal. Ct. App. 1994), where the defendant “was convicted under section 289(a) for inducing his victims to consent to sex acts by pretending to be a faith healer who could cure them.

Arguably this also means that § 289(a) is not a COV under the Supreme Court’s decision in Stokeling v. U.S., 139 S.Ct. 544 (2019). There the 5/4 majority found that Florida robbery is a COV, because “overcoming the resistance of the victim” in a robbery involves a confrontation that is inherently violent, even though it can be committed using a very small amount of force. Section 289(a) may involve overcoming the resistance of the victim, but it should not come within Stokeling if it involves no force at all, but rather psychological manipulation. However, because the Stokeling issue has not yet been litigated, counsel should conservatively assume it may be charged as a COV. But if it is AF as rape, this provides no advantage.

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.

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.⁸⁵ 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.⁸⁶In 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.

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.⁸⁷US v Reinhart, 893 F3d 606 (9th Cir 2018). But might be held AF outside of Ninth Circuit.

Possess child pornography

Ninth Cir held not an AF as child pornography. See Advice.

Yes CIMT.⁸⁸Matter of Olquin-Rufino, 23 I&N Dec. 896 (BIA 2006).

No other removal ground.

AF: See endnote for citations and discussion.⁸⁹The 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).

In Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir. 2015) the Ninth Circuit found that Pen C § 311.11 is broader than the federal definition of child pornography, because the California offense includes depiction of “sexual conduct” that includes any conduct defined in Pen C § 288. See Pen C § 311.4(d), defining sexual conduct. The court noted that § 288 involves a wide range of conduct not limited to explicitly sexual conduct. Chavez-Solis further found that § 311.4(d) is not divisible between conduct in § 288 and the other listed conduct, because a jury is not required to unanimously decide between these alternatives, and therefore no conviction under § 311.11 is child pornography in the Ninth Circuit. However, the best practice is to plead specifically to non-explicit conduct and/or to conduct “as defined in” PC § 288. Note that the BIA held that § 311.11 is an AF as child pornography (Matter of R-A-M-, 25 I&N Dec. 657 (BIA 2012)), but the Ninth Circuit opinion controls.

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 child porn outside the Ninth Circuit.

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.⁹⁰See, 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.⁹¹ 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.

Indecent exposure

Not AF even if minor’s age in ROC,⁹²See 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 avoid CIMT, see disturbing the peace, trespassing, loitering, public nuisance.

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.⁹³In 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.

Turning to Mr. Betansos’ case, the court considered the issue of retroactive application of its decision under Montgomery Ward principles. The court noted that Mr. Betansos had pled guilty after the publication of Ocegueda-Nunez on February 17, 2010, but before the publication of Matter of Cortes Medina on January 8, 2013, and so might have relied on Ocegueda-Nunez. But because Mr. Betansos did not present evidence that he personally had relied on Ocegueda-Nunez, the court applied its new decision retroactively in his case and found his conviction was of a CIMT. “In sum, although it would have been reasonable to rely on Nunez between February 2010 and January 2013 (under Montgomery Ward factor two), Betansos has not shown that he in fact relied on Nunez (under Montgomery Ward factor three).” Betansos at *26. But the court noted that “the reliance analysis is highly fact dependent and conducted on a case-by-case basis… Although Betansos has not identified a specific reliance interest that arose for him during the period that Nunez was well-settled law, another petitioner might do so.” Id. at n. 6 (citation omitted). Defendants who pled guilty to § 314 between February 17, 2010 and January 8, 2013 who can present some evidence that they or their counsel in fact relied upon Ocegueda-Nunez may be able to avoid the conviction being a CIMT. Note that the California Chart editions from 2010 and 2011 cite Ocegueda-Nunez, but also include some warnings. See old copies of the California Chart at https://www.ilrc.org/old-outdated-charts-ca-crimes-and-their-immigration-consequences.

Adam Walsh: If V under 18, this might trigger Adam Walsh provisions; see Advice to PC 288(a).

Keeping or residing in a place of prostitution or lewdness

Should be either divisible or not an AF but use caution and see Advice.
If pleading to this offense, plead specifically to “residing.”

While BIA held 315 is a CIMT, it did not consider the fact that merely residing (which includes residency by a non-sex worker)⁹⁴In 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. should not be a CIMT. But an unrepresented D may not be able to raise this.
While 315 should not be divisible under Ninth Cir rule, best practice is specific plea to residing.
See also PC 370

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.⁹⁵The 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.

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,⁹⁶The 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.

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).

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.⁹⁷In 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.

Elder abuse: Theft, Fraud, Forgery

(d)(1) has potential AF risk if 1 yr or more is imposed or loss > $10k. See Advice.
(d)(2) does not have this risk.

Assume CIMT unless theft can include intent to deprive temporarily.

No other removal ground.

AF: See Advice to PC 484. Plead to embezzlement, fraud, identity theft where loss to victim does not exceed $10,000. This can take a sentence of over a year.

Plead to straight theft (taking by stealth) where loss to victim does exceed $10k. Avoid 1 yr or more on any one count.

Forgery plea should not take either 1 yr or $10,000 loss.

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.

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.

Disturbing the peace

Not AF.

Not CIMT

No other removal ground.

N/A

Failure to disperse

Not AF

Not CIMT

No other removal ground.

N/A

Exhibit firearm (2) or deadly weapon not a firearm (1), in a rude, angry or threatening manner; or unlawfully use in fight

Not AF: maximum 364 days

Should not be a CIMT.⁹⁸Matter 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, resulting in the BIA finding that offense a “crime of moral turpitude,” 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.”

417(a)(2) is not a deportable firearms offense under the antique firearms rule.⁹⁹ Section 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). Still, try to plead to 417(a)(1).
See Advice if V has domestic relationship.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

While no conviction 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 protected under DV laws.

Misd firearms offense is a “significant misdemeanor” for DACA; see Advice at PC 25400.

Exhibit firearm threatening manner so V reason-ably could fear, or to evade arrest

Get 364 days or less to avoid AF as COV.¹⁰⁰Bolanos 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); Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 941 (9th Cir. 2004) (Pen C § 417.8 is a crime of violence). To avoid 1-yr sentence, see § N.4 Sentence

Assume CIMT

See PC 417(a)(2)

Misd firearms offense is a “significant misd” for DACA; see Advice at PC 25400.

See PC 417, 240, for better plea.

Exhibit imitation firearm in threatening manner; V reasonably could fear

COV, but not AF because maximum less than one year

Assume a CIMT

Appears not to meet federal definition of a firearm; if that is correct, not a deportable firearms offense
DV offense if showing that V is DV-type V.

Imitation firearm is defined in PC 17500

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.¹⁰¹Coquico 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.

Criminal threats (formerly terrorist threats)

Get 364 days or less on any single count to avoid AF as COV.¹⁰²Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. 2003). See § N.4 Sentence. See Advice.

Yes CIMT¹⁰³Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012).

Deportable DV crime if proof of DV-type victim. See PC 245.
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

Arson by malice, PC 451
Unlawful burning by reckless disregard of known risk, PC 452

Assume 451, 452 are AFs as analogues to 18 USC 844(i), even without 1 yr imposed.¹⁰⁴See discussion of state analogues to this federal arson statute in Luna Torres v. Lynch, 136 S.Ct. 1619 (2016) and see NIPNLG, Practice Alert: Luna-Torres v. Lynch (May 2016) available at http://nipnlg.org/PDFs/practitioners/practice_advisories/crim/2016_20May_luna-torres-alert.pdf. This is a bad plea. See Advice

Assume CIMT

No other removal ground.

AF as arson. To avoid this see:

— Felonies such as 591, 594, 459 (which may take 1 yr or more without being an AF), perhaps coupled with H&S C 13001 (negligence), PC 136.1(b)(1) consecutive, 370, or

— PC 453, not secure but better than 451, 452.

— Imm counsel can investigate argument that 452 recklessness is not equivalent to federal malice.¹⁰⁵Although 18 USC § 844(i) requires malice and Penal Code § 452 requires recklessness, ICE will argue that they are a categorical match. At least some federal courts define malice in the context of § 844(i) to include “willful disregard of the likelihood that damage or injury would result.” U.S. v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996). Cal. Penal Code § 450(f) defines reckless for purposes of § 452 as follows: “‘Recklessly’ means a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.” Immigration counsel can investigate whether the state definition is broader, based on the inclusion of inebriated behavior or some other factor.

AF as a COV if 1 yr imposed.

— 452 has not been held a COV because it can involve recklessness, but the Supreme Court may change this rule in 2020. See discussion of Borden v. U.S. at PC 207.

— 451(d) includes burning one’s own personal property if certain conditions present including intent to defraud; and by its terms should include burning one’s own real property even without these conditions. These are not COVs because not against the property of others.¹⁰⁶A COV as defined at 18 USC § 16 requires violence against personal property of another, not oneself. But 451 and 452 remain dangerous because they may be AFs as federal arson analogues, per above.

Possess flammable material with intent to burn

Specific plea to “flammable material,” with less than 1 yr, may avoid AF; see Advice.

Yes CIMT

No other removal ground.

AF: Good alternative to 451, 452, assuming possession or disposal of flammable materials is not analogous to a relevant federal offense.¹⁰⁷See 8 USC § 1101(a)(43)(E)(i), listing federal offenses related to explosive devices. To avoid AF as COV, avoid 1 yr on any one count See § N.4 Sentence.

Burglary, first degree (residential)

Not a COV or AF under any category.¹⁰⁸Burglary 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 n. 4, above, for more on the categorical approach. 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.
COV. California first degree burglary was held a COV under 18 USC § 16(b). When the Supreme Court struck down 18 USC § 16(b) as being unconstitutionally vague, it specifically held that Pen C § 460(a) is not a COV. See Sessions v. Dimaya, 138 S.Ct. 1204 (2018), affirming Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and see discussion at Pen C § 207, above. Burglary is not a COV under 18 USC § 16(a), because it has no element of use of force.
Burglary. Because the minimum conduct to commit § 459 includes a lawful entry, whereas the federal generic definition of burglary requires an unlawful entry, and because § 459 is not divisible between a lawful and unlawful entry, therefore no conviction of § 459 amounts to “burglary” for any purpose, regardless of information in the record of conviction. Descamps v. U.S., 570 U.S. 254 (2013).
Attempted theft (or attempted other aggravated felony offense). Section 459 is never attempted theft, under two independent theories. First, the Ninth Circuit found that it is never an attempted theft because the minimum conduct to commit § 459 includes entry with intent to commit a non-theft offense, and § 459 is not divisible for that purpose because a jury is not required to decide unanimously as to the identity of the intended offense. Therefore, no conviction of § 459 amounts to attempted theft for any purpose, regardless of information in the record of conviction. Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014).
Second, attempt requires intent plus a “substantial step” toward committing the offense. The Ninth Circuit held that the minimum conduct for § 460(b)—a lawful entry into a commercial building with intent to commit larceny or any felony—does not constitute the required substantial step. See Hernandez-Cruz v. Holder, 651 F.3d 1094, 1103-05 (9th Cir. 2011). The court did opine in dicta that a plea to the statutory alternative of entry into a locked container or vehicle (see Pen C § 459) may constitute a substantial step. Note, however, that the court assumed this offense would involve a break-in rather than a permissive entry (with a key). Because the minimum conduct includes a permissive entry into a locked car, this also should not be an attempt. See, e.g., Sareang Ye v. INS, 214 F.3d 1128, 1134 (9th Cir. Cal. 2000) (“Moreover, because section 459 does not require an unprivileged or unlawful entry into the vehicle, see Parker, 5 F.3d at 1325, a person can commit vehicle burglary by borrowing the keys of another person’s car and then stealing the car radio once inside.”) Still, where possible plead to something other than a locked vehicle or at least to lawful entry.
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,¹⁰⁹California 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. For further discussion of the categorical approach, see n. 4, above.
The BIA has long held that burglary involving an unlawful entry is a CIMT if the intended offense is a CIMT. See, e.g., Matter of Z, 5 I&N Dec. 383 (BIA 1953) and see, e.g., 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). California burglary does not meet this definition for two reasons. First, the Ninth Circuit held that because § 460(b) can be committed merely by a lawful entry into a commercial building with bad intent, it is never a CIMT even if the intended offense is a CIMT. Hernandez-Cruz v. Holder, 651 F.3d 1094, 1103-05 (9th Cir. 2011). The only threat to this ruling would be if the BIA were to publish a decision disagreeing with Hernandez-Cruz, and then the Ninth Circuit were to decide to defer to that decision.
Second, even if the traditional test were applied to burglary with a lawful entry, § 459 cannot be held a CIMT because it requires intent to commit larceny or any felony, and “any felony” includes non-CIMT offenses, e.g., receipt of stolen property, false imprisonment, vehicle taking, etc. The Ninth Circuit held that § 459 is not divisible for purposes of the intended offense, either between “larceny” and “any felony,” or as to the specific felony. Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (§ 459 is not an AF as attempted theft because it is not divisible as to intended offense). Because the minimum conduct to commit § 459 includes intent to commit offenses that are not CIMTs and the statute is not divisible, no conviction of § 459 is a CIMT under the BIA’s definition. (The BIA should defer to the Ninth Circuit as to when an offense is divisible.)
The BIA set out a second definition of CIMT that only applies to residential burglary, meaning that it could potentially affect § 460(a) but not § 460(b). It held that a burglary consisting of an unlawful entry into an occupied dwelling with intent to commit any crime is a CIMT, regardless of whether the intended crime is a CIMT. Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009). However, California burglary is overbroad because the minimum conduct to commit § 460(a) includes a lawful entry, and it is not divisible between a lawful and unlawful entry. Descamps v. U.S., 570 U.S. 254 (2013). Because § 460(a) is overbroad and indivisible, no conviction of the statute is a CIMT under this definition for any immigration purpose, regardless of information in the record of conviction. Note that § 460(a) is not affected by the Board’s decision in Matter of J-G-D-F, 27 I&N Dec. 82 (BIA 2017), which applied the same rule requiring an unlawful entry; that decision addressed only the definition of an occupied dwelling (including an intermittently occupied dwelling, under Oregon law).
However, while the BIA has emphasized the unlawful entry as a key factor in this definition, it has not specifically considered a statute like § 460(a) that includes a lawful entry into a residence. It is conceivable that someday it would revamp its definition and hold that § 460(a) is a CIMT. But even if the BIA were to make this change, the definition should not be applied retroactively. See, e.g., Martinez-Garcia v. Sessions, 886 F.3d 1291 (9th Cir. 2018) (declining to retroactively apply the expanded definition of theft as a CIMT set out in Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016)). But because of that possibility, if avoiding a CIMT is absolutely critical it might be best to plead to a different offense.
Finally, even though the law is clear that no California burglary conviction is a CIMT for any purpose regardless of information in the record of conviction, defenders still should try to create a good record of conviction in case immigration authorities do not know the law and file erroneous charges against an unrepresented immigrant. Where possible, indicate on the record that the entry was lawful and/or that the intended offense was a non-CIMT. but see Advice about ways to try to prevent mistaken charges in immigration proceedings.

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, 594¹¹⁰Felony 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.

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. See also Advisory on Prop 47 & Immigrants at www.ilrc.org/crimes.

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 may be better 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.”¹¹¹See 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 n. 4, above.

However, if avoiding a CIMT is critical, immigrants with prior convictions of § 460(b) may consider not applying to change the offense to a § 459.5. Burglary as defined by § 459 has a second and unassailable argument against being a CIMT: the intended offense is indivisible between CIMTs and non-CIMTs. See CIMT endnote to § 460(a), above.

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.

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.¹¹²See, 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.

Forgery

Get 364 or less on each count to avoid AF as forgery, or counterfeiting.¹¹³Conviction 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. See § N.4 Sentence.
Also, AF as deceit if loss to victim/s exceeds $10,000.
See Advice and see PC 484.

Yes CIMT. To avoid a CIMT, see 529(a)(3), 530.5

No other removal ground.

To surely avoid AF for 470, D must avoid both 1 yr imposed on any single count and loss to victim/s exceeding $10,000. 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 “theft” as 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.¹¹⁴Conviction 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: Possible for felony if $950 or less. See Advisory Prop 47 & Immigrants at www.ilrc.org/crimes.

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.

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.

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.¹¹⁵Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 8767 (9th Cir 2008). In case 475(c) ever is held “divisible” (see n. 4) 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.

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.¹¹⁶Morales-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.

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: Possible for felony if $950 or less. See Advisory Prop 47 & Immigrants at www.ilrc.org/crimes

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.¹¹⁷While 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) 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. Mr. Silva has filed a petition for rehearing en banc, where the court could make this ruling.

The argument is strong although a bit convoluted. On November 16, 2016, the BIA expanded the definition of theft as a CIMT in Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA Nov. 16, 2016); see also Matter of Obeya, 26 I&N Dec. 856 (BIA 2016). Before Diaz-Lizarraga, the BIA had held that theft is a CIMT only if the intent is to deprive the owner permanently, as opposed to temporarily as in joyriding. In 2016, Diaz-Lizarraga held that theft is a CIMT “if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.” Id. at 853 (emphasis supplied). This expanded definition caused additional offenses to be defined as CIMTs. The Ninth Circuit held that the BIA’s decision to “abandon the literally-permanent deprivation test” constituted an abrupt change in law that would impose “a new and severe burden” if applied to persons who were convicted while the “old rule was extant.” Therefore, it held that for convictions that occurred before November 16, 2016, the date that Matter of Diaz-Lizarraga was published, an offense is a CIMT if only if it required intent to deprive permanently; it is not a CIMT if it required only the substantial erosion of property rights. See Garcia-Martinez v. Sessions, 886 F.3d 1291, 1295–96 (9th Cir. 2018), and see summary at Silva, 965 F.3d at 732-33.

Silva then looked at the definition of Pen C § 484/487 and found that it did and does include intent to substantially erode the owner’s rights. This is reflected in California decisions beginning in 1998, culminating in a 2002 Supreme Court ruling, People v. Avery, 27 Cal. 4th 49, 55, 115 Cal.Rptr.2d 403, 38 P.3d 1 (2002). See Silva, pp. 733-34. Therefore, Pen § 484/487 convictions that occurred before Nov. 16, 2016 should not be held CIMTs: they did not meet the CIMT definition at the time (because the theft could be committed by intent to deprive substantially), and Garcia-Martinez found that the new CIMT definition could not fairly be applied retroactively to convictions before Matter of Diaz-Lizarraga set out the new rule.

The panel concluded that if they “were writing on a clean slate,” they would find that Mr. Silva was not deportable for CIMTs – or at least for the two committed after 1998. Silva, pp. 733-34. However, they were bound by the prior precedent. “Only an en banc court has the power to fix these errors.” Id. at 734, 735. Thank you and congratulations to Francisco Ugarte and San Francisco Office of the Public Defender, who brought the Silva case.

Note that offenses that involve true temporary intent, such as joyriding (which includes depriving the owner of property for a few hours or days), do not meet the new definition of CIMT. See Matter of Diaz-Lizarraga at  850-51 and n. 10. For example, Pen C 496 and Veh C 10851 include intent to commit joyriding and should not be held CIMTs regardless of the date of conviction. Because there is not yet precedent, advocates should act conservatively and not file affirmative applications based upon it, although they should assert the argument as a defense to removal proceedings. Defenders evaluating a client’s priors can consider this possibility in the analysis.

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:

• If 1 yr will be imposed, but loss to victim/s does not exceed $10k, plead to a specific fraud offense in 484.
• If loss to victim/s exceeds $10k, but 1 year will not be imposed, plead to a specific theft offense in 484.
• If a specific plea is not possible, create a sanitized ROC that is vague as to whether theft or fraud was involved.

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.¹¹⁸The 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 n. 4, above for more on the categorical approach. Also, section 484/487 is not an AF as fraud even if loss to the victim/s exceeds $10,000.

However, do not permit both a sentence or a year or more and admission, order of restitution, or other evidence of loss to the victim/s exceeding $10,000 to settle on a single count of § 487, or the conviction will be deemed an AF. See Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020) and see IDP, ILRC, NIPNLG Practice Alert: Matter of Reyes (August  2020) at https://www.ilrc.org/practice-alert-matter-reyes-28-dec-52-ag-2020 .

The BIA similarly finds that theft and fraud are different offenses, and that they require different factors to become an aggravated felony (sentence of a year or more for theft, loss to victim/s exceeding $10,000 for fraud). See discussion of the distinction between theft and fraud in Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (BIA 2008), citing Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005). The Ninth Circuit recognizes this distinction. See Carlos-Blaza v. Holder, 611 F.3d 583 (9th Cir. 2010); Carrillo-Jaime v. Holder, 572 F.3d 747, 752 (9th Cir. 2009), and regarding Pen C § 484, U.S. v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011) (noting that Pen C §§ 484(a) and 666 is not categorically a theft aggravated felony because it covers offenses that do not come within generic theft, such as theft of labor, false credit reporting, and theft by false pretenses) and Garcia v. Lynch, 786 F.3d 789, 794-795 (9th Cir. 2015) (if specific theory of theft under Pen C §§ 484, 487 is not identified, a sentence of one year or more does not make the offense an aggravated felony; court did not reach the issue of whether the statute is divisible between different theories of theft). For further explanation, see ILRC, How to Use the Categorical Approach Now (December 2019) at https://www.ilrc.org/how-use-categorical-approach-now.

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.

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 un-published Ninth Circuit case.¹¹⁹In 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., 487, 459, 530.5 if more than 364 days will be imposed on a single count.

CIMT: If avoiding CIMT is critical, see PC 529(a)(3), 530.5, 496, 10851.

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 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.

Receiving stolen property, or receiving stolen vehicle

Get 364 or less on each count to avoid AF.¹²⁰The 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.¹²¹The 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)).

While those cases held that the statutes were divisible between temporary and permanent taking, the Supreme Court has clarified that the statutes are not divisible, so that the minimum conduct is the sole basis for evaluating the statute. Under the categorical approach, an offense must be evaluated solely according to the minimum conduct required for guilt, which here is a temporary taking. The only exception is if the statute is “truly” divisible. A statute is not divisible unless, at a minimum, it is phrased in the alternative. To meet this requirement, Pen C § 496 would have to be phrased in the alternative, to prohibit intent to deprive “temporarily or permanently.” Because 496 is not phrased in the alternative in this manner, it is not divisible. Because § 496 is both overbroad and indivisible compared to the CIMT generic definition, no conviction can be held a CIMT. See n. 4 above for more on the categorical approach. However, to make sure there are no misunderstandings, best practice is to plead specifically to intent to temporarily deprive the owner. However, for extra protection in case officials do not know the law, plead specifically to intent to deprive temporarily, if that is possible.

Prop 47: Possible if $950 or less. See Advisory Prop 47 & Immigrants at www.ilrc.org/crimes

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

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.¹²²The 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.

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.

Impersonate by electronic means, to harm, intimidate, defraud

AF as fraud if loss exceeds $10k. Con-sider 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.¹²³See 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 n. 4 on the categorical approach, above.

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.

Good alternative to more serious identity theft charge.

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.

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.¹²⁴If 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 n. 4. “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 cate-gorical approach, the sections cannot be held divisible as to the type of unlawful conduct.¹²⁵Section 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.

The Ninth Circuit found that it is not a CIMT because the minimum conduct does not require fraud or harm. Linares-Gonzalez v Lynch, 823 F.3d 508 (9th Cir. 2016); see also 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. Section 530.5(a) criminalizes the willful use of another’s personal identifying information, regardless of whether the user intends to defraud and regardless of whether any actual harm is caused. See People v. Hagedorn (2005) 127 Cal.App.4th 734, 818 (upheld conviction for working under another’s name, and using the identifying information to cash the paycheck); People v. Johnson, (2012) 209 Cal.App.4th 800, 818.

Section 530.5(a) should be held indivisible under Supreme Court precedent on the categorical approach. See n. 4, above. The section provides, “(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty.…” The term “any unlawful purpose” is a single term, not set out in statutory alternatives, and therefore it is not divisible. See, e.g., Descamps v. United States, 570 U.S. 254 (2013).

The statutory list of purposes—“any unlawful purpose, including to obtain … credit, goods, services …”—are illustrative examples, described by the term “including.” As such, the statute is not divisible between them, because they are mere “means” rather than “elements.” In Mathis v. United States, 136 S.Ct. 2243, 2256 (2016) the Supreme Court stated:

Conversely, if a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of commission. United States v. Howard, 742 F. 3d 1334, 1348 (CA11 2014); see United States v. Cabrera-Umanzor, 728 F. 3d 347, 353 (CA4 2013).”

The use of the term “including” in § 530.5(a) shows that this is a quintessential list of illustrative examples. In the above quotation, the Court in Mathis approvingly cited two cases, Howard and Cabrera-Umanzor, that both found statutes to be indivisible because they employed the term “includes” or “including.”

See also CALCRIM No. 2040. “To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully obtained someone else’s personal identifying information; 2. The defendant willfully used that information for an unlawful purpose; AND 3. The defendant used the information without the consent of the person whose identifying information (he/she) was using.” But best practice is to avoid a plea to obtaining credit or goods, and try to plead to specific conduct that does not involve loss, harm, or fraud.

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.

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.

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.

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.

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.

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.¹²⁶Although the statute does not mention fraud, the Ninth Circuit held that because 532a(a) 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.

Immigration advocates who want to contest this can see Judge Tashima’s partial concurrence and dissent and consider whether it is bolstered by subsequent Supreme Court rulings on the categorical approach. As always, while making an argument not guaranteed to win, advocates should pursue other strategies including post-conviction relief at the same time.

Insurance fraud

See §532a(1)

See § 532a(1)

No other removal ground.

See PC 532a(1)

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.¹²⁷For 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.

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).¹²⁸No 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.

Vandalism, Malicious Mischief

(b)(1) at least $400 damage

(b)(2) less than $400 damage

None should be COV, but (a)(1) is safest.¹²⁹See U.S. v. Landeros-Gonzales, 262 F.3d 424 (5th Cir 2001) (graffiti not COV); In re Nicholas Y. (2000) 85 Cal.App.4th 941 (writing on a glass window with a marker that could easily be erased constituted “defacing” under the statute).

Best practice is to avoid violence on ROC. Try to get 364 days, but if 1 yr cannot be avoided, this is a reasonable offense to take it on. See Advice.

See § N.4 Sentence.

Not a CIMT, or conceivably divisible, but see Advice.

No other removal ground

Even if it were held a COV (which it is not), a deportable crime of DV requires violence toward a person, not property.

CIMT. Ninth Cir held similar statute punishing damage over $250 (in 1995 dollars) is not CIMT.¹³⁰See, 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)) and U.S. v. Landeros-Gonzales, 262 F.3d 424 (5th Cir 2001) (graffiti not COV). See also People v. Kahanic (1987) 196 Cal App 3d 461 (conviction upheld when damage was to property jointly owned by defendant and victim). Under that standard, 594(b)(2) is not CIMT, and (b)(1) also should not be b/c minimum conduct is $400 worth of damage. 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.

Gangs and vandalism. The BIA held that 594 with a gang enhancement is a CIMT. The Ninth Cir reversed.¹³¹The 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 Cir 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). Still, try hard to avoid any gang enhancement, including for graffiti, because any gang connection is a terrible negative discretionary factor for immigrants—one that can be worse than a single CIMT.

Burglary: PC 459 does not need to have a non-CIMT as the intended offense in order to avoid being a CIMT, but that is recommended just to provide extra protection. Felony vandalism is good intended offense because it is not a CIMT.¹³²Felony vandalism can be the intended burglary offense. People v. Farley (2009, Cal) 46 Cal 4th 1053.

SB 54. This is one of a few wobblers that do not destroy SB 54 protections that limiting jailor’s cooperation with ICE. See SB 54 Advisory at www.ilrc.org/crimes.

Torturing, abusing, animals (a)

Severely neglecting animals (b)

Appears not to be a COV. See Advice

Assume 597(a) is a CIMT. The BIA held that a federal dog-fighting offense is a CIMT.¹³³See Matter of Ortega Lopez, 27 I&N Dec 382 (BIA 2018) The Board held that causing animals to suffer and die for entertainment, in violation of a federal dog-fighting law, is a CIMT.

Because (b) can involve gross negligence arguably it is not a CIMT. See Advice.

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.¹³⁴See Madrid v. Holder, C.A.92013, 541 Fed.Appx. 789, 2013 WL 5530009.

COV. 18 USC 16(a) includes force against “person or property of another” but not one’s own property. PC 597(a) should not be found divisible between animals that are one’s own versus another’s property, and (b) involves neglect rather than recklessness.

CIMT: Re 597(b), BIA states that reckless-ness is a CIMT when it is defined as a conscious disregard of known imminent risk of death or severe injury of a person. See PC 23103 discussion. Because 597(b) can involve gross negligence, a less serious form of recklessness, arguably it is not a CIMT.

Participating in or being a spectator at dog fights

See PC 597

597.5(a) is a CIMT. See dog-fighting case cited at PC 597. But see advice for (a)(3).

See Advice for 597.5(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.¹³⁵The Board held that causing animals to suffer and die for entertainment by sponsoring or participating in dog fighting, in violation of 7 USC § 2156(a)(1), is categorically a CIMT. It noted that Congress in addition has criminalized being a spectator at a dog fight, under § 2156(a)(2), but declined to address whether that 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.

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.

Trespass, residence

Not AF.

Not CIMT.

No other removal ground.

N/A

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.¹³⁶Orellana 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.¹³⁷For 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:

Deportable stalking offense. A conviction of “stalking” causes deportability under the domestic violence ground, 8 USC 1227(a)(2)(E). The stalking can be against anyone; it is not limited to domestic relationships. Reversing its own prior precedent, the BIA held that Pen C § 646.9 is not a deportable crime of stalking. It held that § 646.9 is overbroad and indivisible because it prohibits intent to cause fear for one’s “safety,” while the generic definition of stalking requires intent to cause fear of “death or bodily injury.” Therefore, no conviction of § 646.9 is a deportable crime of stalking for any immigration purpose. Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 72 (BIA 2012).

Crime of violence. The Ninth Circuit held that at least § 646.9 harassing is not a COV under 18 USC § 16(a) or § 16(b). Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007). Furthermore, § 646.9 should not be held divisible between following and harassing, because a jury is not required to unanimously decide between them. See CALCRIM 1301. The BIA declined to apply the Ninth Circuit’s decision in Malta-Espinoza outside the Ninth Circuit, and found that every § 646.9 conviction is a COV. Matter of U. Singh, 25 I&N Dec. 670, 676-677 (BIA 2012). However, this finding was based on the definition of COV at 18 USC § 16(b), which the Supreme Court has since struck down. See discussion of Sessions v Dimaya, 138 S Ct 1204 (2018) at Pen C § 207, endnote. Under the remaining definition, 18 USC § 16(a), no conviction of § 646.9 should be held a COV for any purpose nationally, regardless of information in the ROC. Still, to provide extra protection defenders should try to plead harassing rather than following.

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.

Disorderly: lewd or dissolute conduct in public

Not AF even if ROC shows minor involved¹³⁸An 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).

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,¹³⁹However, 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).

Disorderly: Prostitution

Not AF

Always a CIMT, whether prostitute or customer.¹⁴⁰Rohit 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.

For more information and citations on the prostitution inadmissibility ground, see endnote.¹⁴¹The 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).

To “engage in” prostitution means that the person engaged in a regular pattern of behavior or conduct. One or two convictions for offering intercourse for a fee may not prove the person is inadmissible under the prostitution ground. Matter of T, 6 K&N Dec. 474 (BIA 1955).

In Matter of Ding, 27 I&N Dec. 295 (BIA 2018) the BIA considered the definition of prostitution for purposes of the aggravated felony at 8 USC 1101(a)(43)(K)(i), owning, managing, etc. a prostitution business. It held that for that purpose, prostitution includes sexual conduct in exchange for anything of value and is not limited to sexual intercourse. The BIA did not change the definition of prostitution for the inadmissibility The BIA acknowledged that Congress could have a reason to define prostitution differently in the AF than in the inadmissibility ground, and—significantly—that those grounds were added to the INA at different points in history when the definition envisioned by Congress was quite different. See also § N.10 Sex Offenses.

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.

Disorderly: Begging, loitering

Not AF.

Not CIMT.

No other removal ground.

Good alternate plea. Do not include extraneous admissions re, e.g., drugs, prostitution, etc.

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.

647(f) should not be held divisible between alcohol, drug, and CS.¹⁴²See discussion of divisible statutes at n. 4, above. 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.

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).

CIMT: Should not be CIMT because offense is completed by peeking, with no intent to commit further crime¹⁴³In 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.

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.

See citations and analysis.¹⁴⁴The 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)).

Section 647.6 is not a divisible statute, because the terms “annoy” and “molest” are synonymous. See People v. Kongs, 30 Cal. App. 4th 1741, 1749 (1994), cited in Nicanor-Romero, 523 F.3d 992 (9th Cir. 2008). Because § 647.6 is overbroad and indivisible, no conviction is SAM or a CIMT for any immigration purpose, regardless of information in the ROC, within the Ninth Circuit. See categorical approach at n. 4, above.

Because of the minor nature of the minimum conduct and the resulting findings of lack of harm to the minor, § 647.6 also should not be held a crime of child abuse under the BIA’s guidelines. See discussion of BIA standard at ILRC, Practice Advisory: California Penal Code § 273a(b) is not a Crime of Child Abuse (February 2016) at https://www.ilrc.org/sites/default/files/resources/child_abuse_273ab_mendoza.pdf.

The Ninth Circuit went into useful detail about the type of minor conduct that has been found to violate § 647.6. In finding that it is not SAM, the court noted that defendants have been convicted of § 647.6 for conduct such as include urinating in public, offering minor females a ride home, driving in the opposite direction; repeatedly driving past a young girl, looking at her, and making hand and facial gestures at her (in that case, “although the conduct was not particularly lewd,” the “behavior would place a normal person in a state of being unhesitatingly irritated, if not also fearful”) and unsuccessfully soliciting a sex act. U.S. v. Pallares-Galan, 359 F.3d at 1101 (9th Cir. 2004). In finding that it is not a CIMT, the court noted that defendants have been convicted of § 647.6 for conduct such as brief touching of a child’s shoulder, photographing children in public with no focus on sexual parts of the body so long as the manner of photographing is objectively “annoying,” and hand and facial gestures or words alone; it found that words need not be lewd or obscene so long as they, or the manner in which they are spoken, are objectively irritating to someone under the age of eighteen, and it is not necessary that the acts or conduct actually disturb or irritate the child. Nicanor-Romero, 523 F.3d at 1000.

In considering whether § 647.6, which reaches irritating behavior toward a 17-year-old, constitutes a deportable crime of child abuse, it may be useful to note that having sexual intercourse with a minor age 16 or older is neither sexual abuse of a minor (Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017)) nor a crime involving moral turpitude (Matter of Jimenez-Cedillo, 27 I&N 1 (BIA 2017)), due to the lack of harm to the minor.

If pleading to 647.6: Best practice is to ID non-explicit, non-harmful 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.

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.

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.¹⁴⁵Prakash 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.

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 non-federal 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.¹⁴⁶See 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.

Possession of illegal knife

Not AF

Not CIMT

Not deportable offense

This is a good immigration plea.

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. ¹⁴⁷Section 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.

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 stay-away 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.

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.¹⁴⁸One 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

Petty theft with a prior

Theft as defined by 484 is not an AF even if 1 yr imposed but avoid getting both 1 yr and loss of $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 makes a dangerous two CIMT convictions. To avoid a CIMT, consider plea to PC 459, 496, or VC 10851. For rules governing when CIMTs trigger a removal ground, see n. 3.

Prop 47 can reduce a qualifying prior 666 to misdemeanor. See materials on Prop 47 and Immigrants at www.ilrc.org/crimes

Failure to appear for misdemeanor

Not AF. See Advice

Does not appear to be a CIMT

No other removal ground.

Not AF as obstruction because that requires 1 year, and not AF as FTA, because that requires FTA for a felony.

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.¹⁴⁹Renteria-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.¹⁵⁰See 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 post-conviction relief for a prior conviction.

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 4573.6.¹⁵¹Sections 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.

Section 4573 prohibits bringing or sending in without permission “any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 1100) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming a controlled substance…” Note that “controlled substance” is singular.

Section 4573.6 prohibits possessing without authorization “any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances ….” Note that “controlled substances” is plural.

Under the categorical approach, both 4573 and 3473.6 are overbroad as CS offenses because the California schedules include substances not on the federal list. The question is, are these statutes also divisible as to the substance. If they are divisible, an immigration (or federal criminal court) judge can look to the individual’s record of conviction to see if it establishes the specific substance.

In U.S. v. Graves, supra, the Ninth Circuit held that PC 4573.6 is overbroad and also indivisible as to the substance. Therefore no conviction is a CS for immigration purposes, even if the person pled to a specific controlled substance (although that plea would be a very bad idea, since immigration judges may not know about any of these cases). So, section 4573.6 is the preferred plea.

Some but not all of the Graves rationales also apply to PC 4573. The court found that 4573.6 is indivisible because it prohibits possessing “substances” in the plural. “This suggests that contemporaneous possession of multiple controlled substances is only a single crime under section 4573.6, and the type of controlled substance is merely a means and not a list of alternative elements.” Second, on the same point, it noted that “a California state court has explicitly held that contemporaneous possession of two or more discrete controlled substances at the same location constitutes one offense under section 4573.6. See People v. Rouser, 69 Cal. Rptr. 2d 563, 564 (Cal. Ct. App. 1997).” Graves at p. 1040.

ICE will argue that these rationales do not apply to PC 4573, which refers to a controlled “substance,” not “substances.” However, despite the difference in language, arguably it would make no sense for the legislature have intended PC 4573 to have the substances be different elements, while intending PC 4573.6 to have them be different means. But this use of the term “substances” is what makes 4573.6 the better plea.

The court’s third rationale should apply to both statutes. In Graves at p. 1040-41, the court stated:

Third, as discussed in Rouser, section 4573.6 is part of a completely different code and is aimed at different problems compared to sections of the Health and Safety Code. While “section 4573.6 appears to be aimed at problems of prison administration,” sections of the Health and Safety Code are “designed to protect the health and safety of all persons within [the state’s] borders … by regulating the traffic in narcotic drugs.” Rouser, 69 Cal. Rptr. 2d at 566–67 (internal quotation marks omitted). Thus, our precedents holding certain California statutes within the Health and Safety Code divisible as to the controlled substance do not necessarily apply to section 4573.6. See Martinez-Lopez, 864 F.3d at 1036 (announcing “[w]e took this case en banc to revisit the divisibility of California drug statutes” and citing a section of the Health and Safety Code); United States v. Ocampo-Estrada, 873 F.3d 661, 668 (9th Cir. 2017) (noting that the principle from Martinez-Lopez “logically extends past section 11352 to other California drug laws”).

We conclude, therefore, that California Penal Code § 4573.6 is not a divisible statute ….

While Graves is a federal criminal case that examines whether 4573.6 is a “felony drug offense,” the same rationale—that the purpose of a statute and even its placement in the code helps to define the statute—applies in immigration law. See, e.g., Matter of Batista-Hernandez , 21 I&N Dec. 955, 961 (BIA 1997) (accessory after the fact is not a CS offense even if the principal committed trafficking in controlled substance, because the purpose of the statute is not to regular drugs; “the nature of being an accessory after the fact lies essentially in obstructing justice and preventing the arrest of the offender.”) Graves and Rouser indicate that this can be a factor in finding that a statute is not divisible for a particular purpose.

See Advice to 11377 regarding non-federally defined substances. See.

Brings alcohol, non-CS drug, or paraphernalia into jail

Not an AF

Should not be a CIMT

No other removal grounds.

Should not be a CS offense: it prohibits alcohol or “any drugs, other than controlled substances,” where one court held “drugs” includes medicine such as antibiotics.¹⁵²See, 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.…”

Good alternative to 4573 and other offenses involving a CS. Try to plead to alcohol for extra safety, although that should not be necessary.

CIMT. As a regulatory offense that does not involve illegal substances, this should not be a CIMT.

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. No conviction is a deport-able and inadmissible CS, at least within Ninth Cir; see Advice. Still, where possible keep ROC clean of reference to specific CS that is on a federal list.

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).¹⁵³The 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.

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 (see 4, above), 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.

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.¹⁵⁴Conviction 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.

.

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.¹⁵⁵For 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.¹⁵⁶Medina-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.

Enhancement for felony com-mitted while released pending other felony charge

May result in sentence of 1 yr or more, which makes certain offenses become AFs.

Does not appear to be CIMT.

Does not appear to cause penalties other than those created by sentence imposed, e.g., inadmissible for two or more convictions with five years total imposed

N/A

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.¹⁵⁷See, 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.

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 and DAPA; see note at PC 25400.

Possession of weapon with intent to assault

Not AF because (a) 6-month max sentence, plus (b) minimum conduct involves offensive touching

Should not be CIMT because minimum conduct is intended offensive touching, with no use of weapon, but could be charged as such. 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).

Not COV, but best practice is to ID a V not protected under DV laws.

Good alternative plea; may have no consequences.

CIMT: To provide extra security, plead to intent to commit offensive touching, and possession of weapon but not intent to use or threat.

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 ID’ing a firearm will be a “significant misdemeanor” firearms offense for DACA. Keep ROC clean of firearm and see note at PC 25400.

Possession of weapon other than firearm; see Advice

Not COV¹⁵⁸United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003). or AF. Can take more than 1 yr sentence.

See Advice

Not CIMT¹⁵⁹Even 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)¹⁶⁰A 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.

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;¹⁶¹This 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.¹⁶²As 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 or Prop 47 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.

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.

.

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.¹⁶³Pen 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.

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.¹⁶⁴See, e.g. Ali v. Mukasey, 521 F.3d 737, 740 (7^th 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.

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

Possession or ownership of ammunition by persons described in 29800

Divisible as AF; see Advice.

To avoid AF, plead to 29800.

See 29800

No other removal ground. Firearms deport ground does not include ammunition,¹⁶⁵The 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.

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.

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.¹⁶⁶Matter 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).

From that it should follow that lending or giving is not, but there is no precedent on those, or the more dangerous offense of sale.

Yes, a deportable firearms offense; the antique firearm exception does not apply.¹⁶⁷“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.

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.¹⁶⁸Sessions v Dimaya, 138 S Ct 1204 (2018). See discussion at Pen C § 207, above. See PC 207.

Misd is a “significant misdemeanor” and bar to DACA but 1203.4 may eliminate it. See PC 25400.

Possession of silencer; possession or sale of machine-gun

See 33215

See 33215

Yes, deportable firearms offense

See 33215

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 specific false fact (if possible, one that is not material). However, the offense appears to be indivisible. If it is, then no convictions should be a CIMT.

False info to officer

Not AF

See VC 20

No other removal ground.

See VC 20

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

N/A

Flight from peace officer

Not AF as COV; see 2800.2.

Not CIMT¹⁶⁹A 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.

N/A

Flight from peace officer with wanton disregard for safety; can be proved by 3 traffic violations

Should not be AF as COV so can take 1 yr,¹⁷⁰Penuliar v. Mukasey, 528 F.3d 603 (9th Cir 2008). Recklessness is not sufficient for a COV. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-30 (9th Cir. 2006) (en banc). A prior decision held that 2800.2 is a COV because of the high degree of recklessness, but it relied on a case that was specifically overturned by Fernandez-Ruiz. See United States v. Campos-Fuerte, 357 F.3d 956, 960 (9th Cir. Cal. 2004), relying on U.S. v. Ceron-Sanchez, 222 F.3d 1169, 1171 (9th Cir. 2000), overturned by Fernandez-Ruiz, supra.

Even if the government were to succeed in persuading courts to rule that a crime of violence definition should be newly interpreted to include recklessness (see discussion of the Voisine case at endnote to Pen C § 207, above), recklessness under § 2800.2 includes simple violation of three traffic offenses in the course of committing the offense, and the statute is indivisible between that and traditional recklessness. See next note. but best practice always is 364 or less on any single count. If possible, plead specifically to three traffic violations per 2800.2(b)

Ninth Circuit held not a CIMT due to three traffic violations alternative.¹⁷¹Ramirez-Contreras v. Sessions, 858 F.3d 1298 (9th Cir 2017). The Ninth Circuit noted that evading a police officer coupled with recklessness defined as “willful and wanton disregard,” standing alone, would suggest an intent sufficient to render § 2800.2 a CIMT, referencing Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (holding that a Washington statute with those elements is a CIMT). However, because § 2800.2(b) defines willful and wanton disregard for this purpose as including simply violating three traffic laws, which can involve relatively innocuous and non-dangerous conduct, the court distinguished § 2800.2 from the statute considered in Matter of Ruiz-Lopez and held that (1) the minimum conduct to commit § 2800.2 is not a CIMT, and (2) § 2800.2 is not divisible between violation of three traffic laws and other conduct amounting to recklessness. Therefore no § 2800.2 conviction is a CIMT for any purpose, even if the ROC identifies conduct other than the three traffic violations. If possible, plead specifically to three traffic violations per 2800.2(b)

No other removal ground.

Wanton disregard for safety can be demonstrated by three traffic violations, per 2800.2(b). That conduct is neither a COV nor a CIMT. The Ninth Cir held that 2800.2 is not divisible between this and other wanton disregard. This is good, because in 2020 the Supreme Court will consider whether recklessness can be a COV. See discussion of Borden v. US at PC 207.

Therefore, while it is not legally necessary, the best practice to prevent mistakes in imm proceedings is to state in the ROC that guilt was based on the three violations.

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.

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.

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.¹⁷²Trafficking 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.

Section 10801 should be held overbroad compared to the definition of the VIN aggravated felony. Section 10801 includes intent to “alter, counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identity, including an identification number, of the vehicle or part, in order to misrepresent its identity or prevent its identification.” CALCRIM 1752 (emphasis added). The minimum conduct could include something other than altering the VIN. Further, the statute does not appear to be divisible, and if that is true, no conviction is an AF.

A “theft offense (including receipt of stolen property)” is an aggravated felony if a sentence of a year or more is imposed. 8 USC § 1101(a)(43)(F). Section 10801 is not categorically (necessarily) a theft offense, because it can be committed by fraud. Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009). The more difficult question is whether it is an aggravated felony as receipt of stolen property, which the BIA has held can be property obtained by theft or fraud. Immigration counsel may identify arguments against this, but criminal defense counsel should assume conservatively that 10801 is an AF as receipt of stolen property if a year or more 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 theft¹⁷³A 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; see n. 4), 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.—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.

Vehicle taking, temporarily or permanently

To surely avoid an AF as obstruction of justice or theft, get 364 days or less on each count, but see Advice. See § N.4 Sentence.

If 1 yr cannot be avoided, or was imposed on a prior, see Advice and plead to “accessory after the fact” rather than a taking.

Never a CIMT regardless of info in the ROC.¹⁷⁴CIMT: 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).

This is not changed by BIA precedent that expands the definition of theft as a CIMT to include not only permanently, but “substantially” depriving the person of ownership benefits, by depriving the owner for a long time. The BIA acknowledges that joyriding (which includes depriving property for a few hours or days and is covered by § 10851) does not meet that new definition. Matter of Diaz-Lizarraga, 26 I&N Dec. 847, 850-51and n. 10 (BIA 2016); Matter of Obeya, 26 I&N Dec. 856 (BIA 2016). (Note that the new standard articulated in Diaz-Lizarraga and Obeya does not apply retroactively to convictions received before their publication date, which was November 16, 2016. Garcia-Martinez v. Sessions, 886 F.3d 1291, 1292 (9th Cir. 2018).)

But to give D extra protection, try to make a specific plea to intent to deprive temporarily.

No other removal ground.

AF. See citations and further discussion here.¹⁷⁵AF. This section provides citations and further discussion, and will be of most use to advocates who need to make the argument that a § 10851 conviction with a year imposed is not an AF under any definition, or who just want to understand the underlying issues. Some of these issues involve the categorical approach, which is discussed further at n. 4, above.

The definition of AF includes “theft” (taking property without consent) and “obstruction of justice” (interference with certain kinds of government action), in each case only if a sentence of a year or more is imposed. See 8 USC § 1101(a)(43)(G), (S). A taking under § 10851 meets the definition of “theft” and is an AF with a sentence of a year. (Remember that this is regardless of whether the intent is to deprive temporarily or permanently; temporary intent pertains to CIMTs, not to an AF.)

However, § 10851 also criminalizes accessory after the fact to the theft. Accessory after the fact is not “theft,” and the Ninth Circuit further held that accessory after the fact under Pen C 32 is not “obstruction of justice.” See Valenzuela Gallardo II, discussed below. There still is uncertainty about two issues. First, at this writing, Valenzuela Gallardo II still could be taken up en banc and potentially reversed.  Second, § 10851 ought to be found not divisible between theft and accessory, but an en banc hearing would be required to obtain that holding; until then it will be considered divisible between theft and accessory in the Ninth Circuit.

Section 10851 includes accessory after the fact; divisibility issue. In 2007 the Ninth Circuit en banc decided United States v. Vidal, 504 F.3d 1072, (9th Cir. 2007) (en banc), on remand after Duenas-Alvarez. Vidal involved a conviction of § 10851 where a year or more had been imposed. In a split decision, the court found that the term “an accessory” in § 10851 refers to an accessory after the fact, like Pen C § 32. Id. at 1077-86, The court found that the inclusion of “accessory” in the text of § 10851 fulfills the “realistic probability of prosecution” requirement set out in Duenas-Alvarez. Id. at 1082. The court held that accessory under § 10851 does not come within the definition of “theft,” which was the only AF category that the government had charged (i.e., it had not charged that 10851 also is an AF as obstruction of justice). It reviewed the record of conviction under the modified categorical approach (i.e., treated § 10851 as a divisible offense) and found that the record was inconclusive. Id. at 1086-90.

Ten years later, in United States v Arriaga-Pinon, 852 F.3d 1195 (9th Cir 2017) the court considered a very similar case: a § 10851 conviction with a sentence of a year or more, that was charged as an AF only as theft, and that involved a record of conviction similar to the one in Vidal. The court followed Vidal and held that 10851 is divisible between theft and accessory, and that the record in the case was inconclusive. But it noted that, based on Supreme Court precedent subsequent to Vidal, such as Mathis, § 10851 ought to be found indivisible between theft and accessory. ,. However, the majority of the three-judge panel concluded they did not have authority to overrule Vidal and find that § 10851 is indivisible. See Arriaga-Pinon, concurrence by Chief Judge Thomas. Therefore, it appears that it will take an en banc or a Supreme Court ruling to get a finding that §10851 is indivisible between a taking and accessory. If accessory continues to be held not to be obstruction (see below), and if sometime in the future an en banc panel finds that § 10851 is held not to be divisible between theft and accessory, then no conviction of § 10851 will be an AF, even with a sentence of a year or more.  Meanwhile, it is critical for defenders (1) to try to avoid a sentence of a year or more on a § 10851, and (2) if that is not possible, to plead specifically to accessory.

10851 accessory as obstruction of justice. DHS may start to charge accessory after the fact under § 10851 as an AF as obstruction of justice, if a year or more is imposed. See 8 USC § 1101(a)(43)(S). If that charge were upheld, then the BIA would likely say that every § 10851conviction with a sentence of a year or more is an AF, because every offense would have to involve either theft (if vehicle-taking) or obstruction (if accessory). See, e.g., discussion in Matter of Reyes, 28 I&N Dec. 52 (AG 2020) (if all means to commit an offense comes within either of two aggravated felony categories, the offense is an aggravated felony.)

The BIA and Ninth Circuit have disagreed in multiple cases about the correct generic definition of obstruction of justice, in the context of Pen C § 32. Significantly, in August 2020 the Ninth Circuit rejected the BIA’s claim and held that Pen C § 32 is not obstruction of justice. See Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II”), discussed at Pen C 32 Advice and endnotes, above. In brief, Valenzuela Gallardo II holds that obstruction is limited to interference with an existing investigation or proceeding, and does not include, e.g., interference with an initial arrest where there is not yet any investigation or proceeding. Accessory after the fact under Pen C 32 does include such an arrest, and the panel held that it is overbroad and indivisible as obstruction. Any ruling on obstruction that applies to Pen C 32 also should apply to accessory under § 10851, so this is good news. The risk is that as of October 2020, it still is possible that Valenzuela Gallardo II would be reheard en banc, so we cannot rely entirely on the decision. This is why we ask defenders to seek a sentence of 364 days or less, which in all cases will prevent a § 10851 conviction from being an AF.

Immigration advocates who have to defend an existing § 10851 with a year imposed will argue that accessory under § 10851 is not obstruction of justice, citing Valenzuela Gallardo II. If needed, they also can argue that § 10851 is not divisible between vehicle taking and accessory, and preserve this issue for a future en banc hearing. But because it may be held divisible, carefully read Vidal and Arriaga-Pinon to see how the courts found the record to be inconclusive. As always, advocates should investigate other defense strategies, such as the possibility of post-conviction relief, at the same time they are litigating the issue.

Both theft and obstruction of justice are AFs if a year or more is imposed. 8 USC 1101(a)(43)(G), (S). Avoiding a year (which includes added time on a PV) will prevent an AF. In case there is a year:

A taking under 10851 is an AF as theft, but 10851 also includes accessory after the fact. Accessory is not “theft” but ICE may argue it is “obstruction.” In August 2020 the Ninth Circuit held that PC 32 accessory after the fact is not an AF as obstruction; see PC 32 Advice above, re Valenzuela Gallardo II. A holding on PC 32 should apply equally to accessory under 10851.  However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less.

Assuming 10851 accessory is not an AF with a year, but 10851 taking is, is 10851 divisible between these two? Under the categorical approach and Mathis, 10851 should not be held divisible. However, an older, pre-Mathis case held that it is divisible, and a panel held that  a Ninth Circuit en banc decision will be required to reverse this. Therefore defenders are strongly urged to plead specifically to accessory; second best is to create an inconclusive record; and try to avoid a plea to taking. See discussion of divisible statutes and creating a record of conviction at n. 4.

Immigration advocates in removal proceedings will assert (1) that 10851 accessory is not obstruction, citing Valenzuela Gallardo II, and (2) if needed argue that 10851 is indivisible, and preserve the argument until we can get an en banc ruling.

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.¹⁷⁶“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.

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.¹⁷⁷The 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).

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.

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

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.

CIMT: A single Arizona offense that has as elements DUI while knowingly driving on a suspended license was held a CIMT.¹⁷⁸Marmolejo-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.¹⁷⁹See, 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.¹⁸⁰The 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).

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.

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.

Hit and run (felony)

Not AF

Assume 20001(a)-(b) is divisible as a CIMT.¹⁸¹See Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008) (finding that VC § 20001(a) is not categorically a crime involving moral turpitude). Assume this is divisible, because a jury must unanimously decide which duty defendant failed to perform. CALCRIM 2140, 2141, 2150, 2151. See Advice.

Assume 20001 enhancement under 20001(c) is CIMT.

No other removal ground.

CIMT. To avoid CIMT, plead to “failure to provide registration information.” Do not plead to failure to stop.

Or, to prevent the offense from causing an LPR who is not already deportable to not have a CIMT for deportability purposes, plead to the language of the statute in the alternative.

Hit and run (misd)

Not AF.

Divisible as CIMT. Advice to 20001¹⁸²See, 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).”).

No other removal ground.

See VC 20001¹⁸³In finding that Veh C § 20002(a)(2) was not 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).

Try for Veh C 16025 (infraction failure to exchange information)

Reckless driving

Not AF as COV because 23103 has less than 1 yr potential sentence

Should not be held a CIMT.¹⁸⁴Recklessness 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.¹⁸⁵This 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).

Moral 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”). Sections 23103, 23103.5 lack that element.

COV. In 2020 the Supreme Court will consider whether a COV can include reckless conduct. See discussion of Borden v. US at PC 207. But even if 23103 were held a COV, a sentence of 1 year or more cannot be imposed, so it cannot become a COV AF.

Reckless driving & use of alcohol or drugs

“Wet reckless”

Not AF as COV because less than 1 yr sentence. See Advice to 23103.

Not CIMT; see 23103

Not CS offense because the offense is not divisible as to the substance; see n. 4, 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.

Reckless driving proximate cause of injury

Not a COV under current law, but this may change. Avoid 1 yr or more and see Advice.

Might be CIMT. See Advice.

No other ground

CIMT: Acting recklessly with wanton disregard of imminent risk to life or serious injury is a CIMT. Note voluntary intoxication is not a defense against a CIMT finding.

AF/COV: In 2020 the Supreme Court will decide whether reckless behavior can be a COV. See discussion of Borden v. U.S. at PC 207, VC 23103. Since this could make 23104, 23105 a COV, conservatively plead to 364 days or less for any single count of these to avoid a possible AF as a COV.

(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 CIMT¹⁸⁶Subsection (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.

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.¹⁸⁷Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001).

Conviction is itself is not an inadmissibility ground but see Advice.

Discretion: While not a specific removal ground, a DUI conviction is a common basis for denying release on bond and discretionary applications for relief. See Advice.

U.S. consulates might revoke a non-immigrant visa (e.g., student visa) in response to DUI arrest or conviction. If this happens, the person should not return home without first consulting with an imm attorney.

See 23103.5 as alternative plea.

See Practice Advisory on DUI immigration consequences.¹⁸⁸See ILRC, Immigration Consequences of Driving under the Influence (August 2017) at https://www.ilrc.org/immigration-consequences-driving-under-influence.

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.¹⁸⁹See 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.

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.¹⁹⁰In 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.

Inadmissibility. A recent DUI arrest or conviction, or multiple past arrests or convictions, can trigger evaluation for being inadmissible due to alcoholism.¹⁹¹Having 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 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.¹⁹²8 USC § 1182(a)(2), INA § 212(a)(2).

Asylum. Proposed imm regulations would make two DUI’s, or one DUI with injury (see 23153), a bar to asylum. Check updates.

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. In that case, however, ICE may go to D’s home, because ICE prioritizes DUI’s. Give D “red cards” and refer for training.¹⁹³SB 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.

If the client is removable, the DUI is likely to make them a priority for ICE, so that ICE may come to their home if ICE doesn’t arrest them from jail. You can help your client by providing red cards and referring the person to a local nonprofit for advice and training. “Red cards” are red laminated cards distributed by ILRC that explain immigrants’ rights on one side (in any of several different languages) and on the other side, state in English that they do not wish to speak to the officer. To get more information, order red cards in bulk in various languages (for free, for California public defender and nonprofit organizations, and otherwise at low cost), or download any of the text for free, go to www.ilrc.org/red-cards.

DACA. A DUI is a bar to DACA, but PC 1203.4 may work. See PC 25400.

See also 23153 regarding a particularly serious crime, affecting asylum applicants, asylees and refugees.

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,¹⁹⁴A 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 further discussion of the categorical approach at n. 4, above. 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 to or to a specific non-CS, e.g., allergy or sleeping medication. See Advice.

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.

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.¹⁹⁵See 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.

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 (a)) instead. Or if needed, plead to both 273a(b) and 23152(a) or wet reckless.

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 10980.¹⁹⁶Cal. 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.

Possess a CS not properly prescribed

No, unless perhaps it is flunitrazepam

No

Assume that this is “divisible” as a controlled substance (CS) offense, like 11377. See discussion of ‘non-federal substance” defenses at 11377.

While criminal defense counsel must conservatively assume 4060 will be treated as a divisible statute, immigration advocates can investigate arguments that the specific substance is not an element of 4060, and thus 4060 is different from 11350, 11377 and is not a divisible statute. See discussion of Martinez-Lopez at 11377.

Possess, sell syringe without a license

No

No, because they are regulatory offenses

Should not be a deportable or inadmissible CS offense

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.

Possess no more than 28.5 grams of cannabis or 8 grams of concentrated cannabis, while age 18-20 (infraction). ****
Caution: While this conduct is lawful for age 21 or older, see Advice regarding danger of admitting adult conduct with marijuana to imm officials.

Not an AF, unless a prior possession is plead or proved.
See Advice for argument that California cannabis is not a controlled substance for immigration purposes

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.¹⁹⁷A 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).

Under federal law, the term marijuana includes all parts of the plant, including concentrated cannabis (hashish). 21 USC § 802(16). The 30 grams or less benefits extend to using paraphernalia relating to a small amount of marijuana. Matter of Davy, 26 I&N Dec. 37 (BIA 2012). The Ninth Circuit has held that the “30 grams” benefits also extend to being under the influence of marijuana (Flores-Arellano v. INS, 5 F.3d 360, 363 (9th Cir. 1993), Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005)), but the BIA indicated that they do not (Matter of Davy, supra at n. 3). See further discussion and defenses relating to the 30 grams exception at Zota, Matter of Davy and the Categorical Approach (NIPNLG January 15, 2013) at http://www.nipnlg.org/practice.html See Advice for argument that Cal cannabis is not a controlled substance.

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).

Argument that California cannabis is not a federally defined controlled substance.  See endnote for further discussion and citations.¹⁹⁸The following arguments were made in the case of Prado v. Barr, 923 F.3d 1203 (9th Cir. 2019), where the court denied relief, but did not reach all of the issues. Sample briefs arguing two points will be posted at www.ilrc.org/crimes in the near future. Many thanks to the students of the Boston College Law School Ninth Circuit Appellate Program, and Associate Professor Kari Hong, for developing and sharing these arguments.

This section will provide a brief summary of the arguments, which are:

– The new California definition of cannabis, created by Prop 64, is overbroad and indivisible compared to the federal definition of marijuana, and thus is not a controlled substance for immigration purposes. This would apply to all convictions from on or after November 9, 2016, which was the effective date of Prop. 64.

– Some convictions that occurred before Prop 64 took effect on November 9, 2016, and that have been recalled and re-designated as misdemeanors or infractions under H&S C 11361.8(e), are necessarily convictions of “new” offenses that also include the new definition of California cannabis. These also are not controlled substance convictions for immigration purposes.

The argument that after Prop 64, California cannabis is not a federally defined controlled substance was made in Prado v. Barr, but the court did not consider it because it decided that it was not relevant to Ms. Prado’s pre-Prop 64 conviction. The BIA has rejected a similar argument in a case arising outside the Ninth Circuit, in Matter of Guadarrama, 27 I&N Dec. 560 (BIA 2019).

The argument is based on the fact that the federal definition of marijuana excludes mature stalks of the cannabis plant (see 21 USC § 802(16)(B)), whereas Prop 64 changed the California definition to make it broader than the federal definition, by eliminating the exclusion of mature stalks. See changes to H&S C §§ 11018, 11018.5 after Prop 64. More specifically, 21 USC § 802(16) has excluded mature plant stalks for decades, and as of Dec. 20, 2018 legislation, § 802(16)(B) also excludes “hemp,” defined at 7 USC § 1639o as any part of the plant that contains no more than 0.3% of THC. So, federal law does not reach any substance with 0.3% or less of THC, or any mature stalks at all, regardless of percent of THC.  In California, before Prop 64 the definition of marijuana was the same as the federal; it excluded mature plant stalks. Prop 64 changed the definition in two ways: it ended the exclusion of mature plant stalks, and substituted the exclusion of “industrial hemp,” defined as any part of the plant that contains no more than 0.3% of THC. Taking these definitions together, California cannabis is broader than federal marijuana because federal law does not regulate any mature stalks, even if they have more than 0.3% THC, while California does regulate mature stalks as long as they have more than 0.3% THC. Prop 64 made this change deliberately and it has real-world application: while “mature stalks” in the past might have been used for only industrial purposes, today mature stalks or hemp in many cases contains more than 0.3% THC and is used for human ingestion. When it does, California regulates it, but federal law does not. As one example, the California agency advising restaurants on how to comply with Prop 64 states, “the use of industrial hemp as the source of CBD [cannabidiol oil] to be added to food products is prohibited.”  Alcoholic Beverage Control, Industrial Advisory: Cannabis and Alcoholic Beverages, Cal. Cannabis Portal (July 25, 2018) https://cannabis.ca.gov/2018/07/25/industry-advisory-cannabis-and-alcoholic-beverages/.  Thus, California cannabis is overbroad compared to federal marijuana. It also is indivisible, because California law does not treat conduct involving different parts of the same substance as separate crimes. See, e.g., People v. Goddard, No. A150479, 2018 WL 1755419, at *2 (Cal. Ct. App. Apr. 12, 2018). See argument posted at www.ilrc.org/crimes for further discussion.

In Prado, the court considered but apparently did not understand the second argument, which is that certain convictions from before Prop 64 become convictions of new offenses with new elements, including the new definition of cannabis, when they are recalled and re-designated under Prop 64 provisions. In many cases, changing a prior conviction to conform with Prop 64, under H&S C 11361.8(e), is not simply a reduction of sentence like Pen C § 17(b)(3) (which can reduce a “wobbler” felony to a misdemeanor) or even Prop 47. For H&S C § 11359, the offense at issue in Prado, the felony is changed to a misdemeanor with different elements that did not exist until Prop 64; therefore, the conviction must take on the elements of the misdemeanor. There are cases showing that Prop. 64 applies retroactively. See, e.g., People v. Smit, 24 Cal. App. 5th 596, 601 (Ct. App. 2018). Also, unlike Prop. 47, those eligible for Prop. 64 remain eligible for resentencing even when they committed presumptively disqualifying crimes before the marijuana offense at issue. See People v. Jones, F076611, 2019 WL 1513079, at *3 (Cal. App. Apr. 8, 2019) (“[T]he court had discretion in determining whether to reduce Jones’s offense despite his prior conviction requiring sex offender registration.”); People v. Taylor, 2E069373, 2019 WL 926601, at *12 (Cal. App. Feb. 26, 2019) (remanding because “the trial court was not aware that it had the discretion to impose a misdemeanor sentence.…”). Further, California Supreme Court authority strongly suggests that Prop. 64, like Prop. 47, applies retroactively to amend prior convictions without having the prior plea agreement withdrawn or rescinded. In Doe v. Harris, the Ninth Circuit certified a question to the California Supreme Court: “can the terms of a plea agreement be affected by changes in the law?” Doe v. Harris, 57 Cal. 4th 64, 66 (Cal. 2013). Doe v. Harris answered yes, explaining that a new sex offender registration program applies retroactively to an old plea agreement because “the general rule in California is that plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.” Id. at 71. In 2016, the California Supreme Court held that a trial court may recall and reclassify an offense under Prop. 47 without rescinding a plea agreement. See Harris v. Superior Court, 1 Cal. 5th 984, 992 (Cal. 2016). Harris v. Superior Court explained that Prop. 47 “applies retroactively to all persons who meet the qualifying criteria and are serving a prison sentence for one of those convictions, whether the conviction was by trial or plea. The electorate may bind the People to a unilateral change in a sentence without affording them the option to rescind the plea agreement.” Id. As a result, arguably Prop 64 applies to any felony or misdemeanor that is dismissed, recalled, and reclassified as a misdemeanor or infraction, pursuant to Prop 64 provisions at H&S C § 11361.8(e), (f). In contrast to, e.g., Prop 47, Prop 64 not only reduces the offense level and potential sentence (which Prop 47 does), but in recalling and reclassifying the offense, it also amends predicate convictions of completed crimes to comport with the new law, including the amended definition of marijuana.

Finally, the petitioner in Prado argued that Prop 64 is not a “rehabilitative” statute based on good behavior, but a statute designed to correct an error: the racist and unfair application of marijuana laws. The court rejected this. The ILRC submitted an amicus brief objecting to the Prado decision’s misstatement of an ILRC report, where the court wrongly stated ILRC had said the re-designation was rehabilitative. The ILRC also stated that its report, which was published several months before the passage of Prop 64, had incorrectly assumed that the Prop 64 re-designation scheme was similar to Pen C § 17(b)(3), when in fact it is materially different.

See sample arguments, and ILRC amicus brief, on Prado and Prop 64 posted at www.ilrc.org/crimes.

Imm advocates can argue that due to changes made by Prop 64, cannabis as defined under California law is not a CS for immigration purposes, and therefore is not a deportable or inadmissible drug offense or aggravated felony, because it is overbroad and indivisible compared to the federal definition of marijuana. (The BIA rejected this argument in other jurisdictions, but there is a strong basis for it under Ninth Circuit law.)

This applies to convictions on or after Nov. 9, 2016. Arguably it also applies to convictions from before that date, if at any time they are recalled and re-designated as misdemeanors or infractions under Prop 64, on the grounds that this process of necessity results in a new offense that uses the new Prop 64 definition.

Defenders should not rely on this defense but should know it is a possibility. Advocates can assert the defense but should also pursue other strategies such as vacating the conviction. A model brief will be posted at www.ilrc.org/crimes in future.

Infraction. Conservatively assume a California infraction in adult (not juvenile) court is a “conviction” for imm purposes, because many imm officers treat it as such, although arguably in error. See 11358.

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.

Post-conviction relief. Use PC 1203.43 to vacate prior DEJ pleas for imm purposes. 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), although we do not yet have precedent that DHS must accept 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.¹⁹⁹See 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 (2018), at https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana.

On April 19, 2019 USCIS published a Policy Alert that announced that they consider employment in the marijuana industry, and admitting to possessing marijuana, a bar to establishing good moral character (“GMC”) for naturalization, even if it was legal under state law. It announced amendments to Policy Manual (Vol 12, Part F, Chapter 5) to reflect that. See https://www.uscis.gov/sites/default/files/policymanual/updates/20190419-ControlledSubstanceViolations.pdf

While USCIS did not discuss inadmissibility in these materials, being inadmissible is the underlying legal reason that this conduct would be a bar to the GMC required for naturalization. Being inadmissible under the crimes grounds during the period for which GMC must be proved constitutes a statutory bar to establishing GMC. See INA § 101(f)(3), 8 USC 1101(f)(3). In some areas USCIS has found people inadmissible on the grounds that USCIS has “reason to believe” the people participated in trafficking in marijuana, a controlled substance (this is a factual claim, based upon the fact that the person listed a cannabis company as an employer on the I-485 or N-400). Or, they charge the person with being is inadmissible for admitting to having committed a federal drug offense (this requires a qualifying admission of possession, sale, distribution, etc., of cannabis by the person). See INA 212(a)(2)(A)(i)(II), (C); 8 USC 1182(a)(2)(A)(i)(II, (C).

Until now, Washington, Colorado, and a few other jurisdictions have been known to ask naturalization or even adjustment applicants if they ever have used marijuana—which many people innocently admit, based on their understanding that it is legally permitted under state law. These jurisdictions also target people who have worked in any capacity in the cannabis industry. Before the Policy Alert came out, in California it appeared that authorities did not go through this inquiry, except at the border. Now this may change. Practitioners should research what is happening in their local USCIS office to try to determine the risk of sending in an applicant for adjustment, naturalization, or other relief. See further discussion of legal risks and defenses involving legalized marijuana at the Practice Advisory cited above.

Possess more than 28.5 grams cannabis or 8 grams concentrated cannabis
Age 18 and older

Not an AF unless a prior possession is plead or proved.
See Advice at 11357(a), above, for argument that Cal cannabis is not a CS for immigration purposes

Not a CIMT

See Advice.

Yes, deportable and 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.²⁰⁰ The BIA held that the amount of marijuana is not established under the regular categorical approach, which focuses on the minimum conduct required for guilt, but under 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); see also Matter of Hernandez-Rodriguez, 26 I&N Dec. 408 (BIA 2014). For a discussion of both how to contest and how to best use this ruling, 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.

Under the circumstance specific approach, arguably a statement in the plea agreement that the amount was, e.g., 29 grams overcomes other factual evidence. See, e.g., Chang v. INS, 307 F.3d 1185 (9th Cir. 2002) (plea to loss to victim under $10,000 is controlling) 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 Matter of Davy and the Categorical Approach, above, and see Nijhawan practice advisories at www.ilrc.org/crimes and www.nipnlg.org.

The BIA held that ICE must prove deportability by establishing that the amount in the case was over 30 grams, while the immigrant must prove eligibility for a § 212(h) waiver by showing the amount was 30 grams or less. Matter of Hernandez-Rodriguez, supra. Plead specifically to 29 or 30 gm or less. See Advice regarding concentrated cannabis.

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.

Please read Advice for 11357(a), including argument that California cannabis is not a CS for immigration purposes.

Concentrated cannabis.²⁰¹The 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.

The advantages relating to possessing 30 grams or less of marijuana apply, at the least, to the equivalent amount of hashish (not hash oil), which is 6 grams or less. See USSG equivalency chart on page 167 of https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/CHAPTER_2_D.pdf. Immigration authorities (as the former INS) acknowledged that a conviction of 30 grams of concentrated cannabis comes within the automatic exception to the deportation ground and is amenable to a waiver of inadmissibility under INA § 212(h) [8 USC § 1182(h)]. But INS recommended that absent unusual circumstances, the § 212(h) waiver should be denied as a matter of discretion if the amount of concentrated cannabis is equivalent to more than 30 grams of marijuana, i.e., is more than a few grams of hashish. See INS General Counsel Legal Opinion 96-3 (April 23, 1996), withdrawing previous INS General Counsel Legal Opinion 92-47 (August 9, 1992). The immigrant must prove the amount, so counsel should be sure to put the amount on the record, for example written on the plea form and/or stated in the plea colloquy—or else plead to 30 grams or less of marijuana (“cannabis”). Immigration authorities are likely to deny a 212(h) waiver of inadmissibility as a matter of discretion unless the concentrated cannabis amount is equivalent to 30 grams marijuana or less, meaning six grams or less of hashish (but not hash oil). Try to plead to this amount, or else just plead to marijuana (“cannabis” in California statute).

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 “marijuana,” which includes concentrated cannabis, is not a deportable offense. But best practice is to plead to six grams or less 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,²⁰²See, 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.

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
See Advice at 11357(a), above, for argument that Cal cannabis is not a CS for immigration purposes

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).²⁰³See 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).

Possess any of several controlled substances (CS) that are defined by California statute

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)

Deportable and inadmissible CS offense, unless a non-federal substance defense applies. (For that defense, 11377-79 is preferable to 11350-52.)

See this endnote²⁰⁴See generally ILRC, § N.8 Controlled Substance at www.ilrc.org/chart (2019) and see also:

ILRC, Practice Advisory: What Qualifies as a Conviction for Immigration Purposes (March 2018) at https://www.ilrc.org/what-qualifies-conviction-immigration-purposes (all topics)

ILRC, Practice Advisory: New California Pretrial Diversion (January 2018) at https://www.ilrc.org/new-california-pretrial-diversion-minor-drug-charges (includes § 1203.43)

ILRC, Practice Advisory: New Law that Will Help Vacate Legally Invalid Convictions: Penal Code § 1473.7 (October 2016) at https://www.ilrc.org/new-law-will-help-vacate-legally-invalid-convictions-advisory-about-ab-813

ILRC, Practice Advisory on Lujan-Armendariz and Nunez-Reyes (Drug Convictions on or before July 14, 2011) (July 2011) at https://www.ilrc.org/practice-advisory-lujan-nunez-july-14-2011

ILRC, Infographic About Post-Conviction Relief Vehicles (June 2017) at https://www.ilrc.org/infographic-about-california-post-conviction-relief-vehicles for links to Practice Advisories that cover the below topics in more detail.

1. Try to avoid a CS conviction—especially a first one! Depending on the individual, a single possession conviction 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. Argue equities and try to plead to e.g., 32, 459, 136.1(b), trespass, 459, DUI, B&P C 4140, etc. Individual analysis is required, but often a plea to a theft or even a violent offense is better than a CS offense. See § N.8 Controlled Substance.

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. Note that 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. Eliminate a prior CS conviction.

Former DEJ. People who pled guilty under former PC 1000/DEJ (1996-2917) and who obtain dismissal under former 1000.3 can submit a free, simple application to eliminate this “conviction” for immigration purposes, per PC 1203.43. See advisories 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 Cir found that a prior removal of a person who would have qualified for Lujan treatment was a gross miscarriage of justice.²⁰⁵See Vega-Anguiano v. Barr, 942 F.3d 945, 946 (9th Cir. 2019) (preventing government from reinstating the 1998 removal order).

Vacatur per PC 1473.7, 1016.5, habeas corpus, etc. California has several other types of post-conviction relief that can help immigrants; see especially PC 1473.7. See advisories at endnote above or go to www.ilrc.org/immigrant-post-conviction-relief.

4. Consider using a non-federal substance defense. To be a deportable or inadmissible CS offense or CS agg felony, a state conviction must involve a substance listed in federal drug schedules. California laws include a few non-federally listed substances. This gives rise to two non-federal substance defenses: the “unspecified substance” defense, where the record is sanitized to not reveal what substance was involved (see Part a, below), and the stronger but more difficult to obtain “specific non-federal substance” defense, where the record identifies one of the few substances listed in California, but not federal, drug schedules (see Part b, below). See also discussion of heroin which, unlike meth, might not be a federal controlled substance (Part c) and of cannabis as defined under Prop 64, where there is an argument that it is not a federal controlled substance (Part d).

Note that while the Ninth Circuit has upheld the non-federal substance defenses for 11550, 11350-52, and 11377-79, it is best to use 11377-79 for this defense.

a. Unspecified controlled substance defense prevents a finding of deportability, but will it continue to preserve eligibility to apply for relief?

Bottom line: The Ninth Circuit found that H&S C 11350-52, 11377-79 are divisible as to the substance involved: these statutes include some substances that are, and some that are not, on the federal lists, and the specific substance involved is an element of the California offense. Because these statutes are divisible, an immigration judge can look to certain documents that make up the individual’s “record of conviction” (ROC) to see which substance was involved in their conviction. (See discussion of the ROC below).

If the ROC is inconclusive on this point, then ICE cannot prove that an LPR is deportable.

But what happens if the ROC is inconclusive as to the substance, and the immigrant needs to apply for some relief?  In 2019 the Ninth Circuit held in a great opinion that an inconclusive ROC means there is no CS conviction for any federal purpose, including eligibility for relief.  Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc). However, the Supreme Court will hear arguments on this issue in fall 2020, in Pereida v. Barr, No. 19-438.  Under Marinelarena, the Ninth Circuit rule is that if the defendant’s entire ROC refers only to “a controlled substance” (as opposed to, e.g., “ecstasy”) then a plea to 11377-79 or 11350-52 is not a controlled substance conviction for any immigration purpose, including eligibility for relief. Before Marinelarena, the defense effectively was available only to lawful permanent residents who were not already deportable, where ICE had the burden of proving that a conviction involved a federally defined controlled substance and therefore made them deportable. ICE could not meet its burden with an inconclusive ROC. Under Marinelarena, an inconclusive ROC also protects an immigrant—e.g., an undocumented person, or already-deportable LPR—who needs to apply for relief.

Marinelarena opened a desperately needed defense for undocumented people charged with drug crimes. In many cases, defense counsel are able to negotiate creation of an ROC that refers only to “a controlled substance.” Under Marinelarena, that is enough to avoid a dangerous drug conviction for all immigration purposes.

But due to a circuit split, the Supreme Court took up the issue in Pereida v. Barr. If the Court were to reverse the Marinelarena rule, the unspecified substance defense would go back to only helping permanent residents who are not already deportable; they still will be able to avoid being found deportable if the record of conviction of a divisible statute is inconclusive.

Therefore, the first line of defense always is to make every possible effort to avoid a drug conviction, by pleading to a non-drug offense or, where appropriate, getting pre-trial diversion such as PC 1000—especially for an undocumented person or other immigrant who must apply for relief. But where this is impossible, then creating a sanitized ROC remains a worthwhile option for immigrants who must apply for relief, because the Supreme Court might uphold the Marinelarena rule.

To read more about the legal issues involved in Marinelarena, see this endnote.²⁰⁶Non-federal substance defenses. All controlled substance removal grounds include language that defines a controlled substance (CS) according to federal drug schedules at 21 USC § 802. Deportable and inadmissible convictions or admissions, aggravated felony convictions, being inadmissible because gov’t has “reason to believe” one participated in trafficking, and (in regulation) drug abuse and addiction, all must involve a federal substance.

To come within any of these removal grounds, a conviction must have involved a substance that at that time was on the federal lists. See Mellouli v. Lynch, 135 S. Ct. 1980, 1982 (2015) (“At the time of Mellouli’s conviction, Kansas’ schedules included at least nine substances not on the federal lists.”).

The Ninth Circuit held that California H&S C §§ 11350-52 and 11377-79 are overbroad as controlled substance offenses: they reach some substances that are, and some that are not, on the federal schedules. Regarding §§ 11350-52, see, e.g., U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc); U.S. v. De La Torre-Jimenez, 771 F.3d 1163 (9th Cir. 2014); U.S. v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012); Esquivel-Garcia v. Holder, 593 F.3d 1025 (9th Cir. 2010). Regarding H&S C §§ 11377-79, see, e.g. Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014); Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007).

The Ninth Circuit has held that §§ 11350-52 and 11377-79 are divisible as to the substance. Under the modified categorical approach, an immigration judge or officer may look to the person’s record of conviction (ROC) to see if it proves that a federally listed substance was the subject of the conviction. Martinez-Lopez, supra. The disparity between federal and criminal CS definitions gives rise to two defenses: the unspecified substance and the specific non-federal substance defenses.

The unspecified substance defense and Marinelarena/Pereida. It is settled that ICE has the burden of proving deportability, which in this context means that to prove that an LPR is deportable for having a controlled substance conviction, ICE must produce a ROC that shows that a conviction under 11377-79 or 11350-52 related to a specific, federally-defined controlled substance. If the ROC was inconclusive as to the drug, because documents only referred to “a controlled substance,” ICE could not meet its burden.

The long-running contested issue, which is likely to be finally resolved in the Supreme Court’s decision in Pereida, is: what effect does an inconclusive ROC have when the immigrant is applying for relief? From at least 2007 to 2012, the Ninth Circuit held that an inconclusive ROC meant that such a conviction does not destroy eligibility for relief.  See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Rosas-Castaneda v. Holder, 655 F.3d 875, 883-84 (9thh Cir. 2011). Then from 2012 to July 2019, the Ninth Circuit reversed course and held that the burden of proof switches when it comes to applying for relief. Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) Under the Young rule, the immigrant had to prove they were eligible for relief, and if the relief would be blocked by a drug conviction, the immigrant had to produce an ROC that showed that the conviction involved a specific substance that was not on the federal list, such as chorionic gonadotropin. Therefore, an inconclusive ROC did not help an undocumented defendant, or an LPR who already was deportable, because they could not meet their burden of proving their conviction did not involve a federally defined substance.  In 2019, the Ninth Circuit reversed course again: it overturned the Young rule in Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc), based on the intervening Supreme Court decision in Moncrieffe v. Holder, 569 U.S. 184 (2013). It held that if the ROC in a divisible statute is inconclusive, the conviction is not a “controlled substance” offense for any purposes, including as a bar to eligibility for relief. Now the issue is before the Supreme Court, which took up the Pereida case from the Sixth Circuit.

Ms. Marinelarena was convicted of Pen C 182(a)(1), conspiring to “sell and transport” an unspecified “controlled substance” under H&S C § 11352. The issue was whether this was a controlled substance offense that would bar her eligibility to apply for non-LPR cancellation. The court held that conspiracy, § 182(a)(1), is overbroad as a controlled substance offense, because it punishes conspiring to commit a range of crimes. “Having determined that § 182(a)(1) is not a categorical match, we normally next turn to the question of divisibility. However, for our purposes, it is sufficient to assume that § 182(a)(1) is divisible both as to the predicate crime underlying the conspiracy (here, § 11352) and as to the controlled substance element of § 11352, for, as explained below, it would make no difference in the outcome of this case if it were not.” Marinelarena at * 15. The court found that Ms. Marinelarena’s ROC was inconclusive because it included only the complaint. “[A] complaint alone is insufficient to prove a conviction related to a particular controlled substance, and the record contains no plea agreement, plea colloquy, or judgment to establish the elements on which Marinelarena’s conviction under 182(a)(1) rested.” Marinelarena at *16.

Thus, there was an inconclusive record of a conviction under a divisible statute. Under Young, Ms. Marinelarena would not have met her burden to prove eligibility for cancellation. But the court found that the analysis in Young is incompatible with Moncrieffe and subsequent Supreme Court rulings. The modified categorical approach is not a factual question that is subject to switching the burden of proof. “[W]hether the record of conviction necessarily established the elements of the disqualifying federal offense ‘is a legal question with a yes or no answer.’ Almanza-Arenas, 815 F.3d at 489 (Watford, J., concurring). And, as a pure question of law, it is unaffected by statutory burdens of proof.” Instead, “the categorical approach, and by extension the modified categorical approach, poses a fundamentally legal question. The categorical approach involves an ‘abstract’ inquiry, focused on whether a petitioner was ‘necessarily’ convicted of a disqualifying offense.” Marinelarena at *22-23. Once the court establishes that the offense does not necessarily involve a federally defined controlled substance (i.e., that the record is not conclusive), the inquiry is over.

The Supreme Court will address this issue in 2020 in Pereida v. Barr, No. 19-438 (2019). That decision presumably will uphold or reverse the Marinelarena rule. Until the Court decides Pereida, by far the best practice is to continue to use caution and try to get a specific “good” plea rather than rely on an inconclusive record, or better yet to plead to a non-drug offense. In immigration proceedings, advocates will continue to cite Marinelarena, which is governing law under the Supreme Court decides Pereida. See further discussion, including instructions for how to create an inconclusive ROC, at § 11377 and see n. 4.

Specific federal substance defense. For this defense, counsel must negotiate a plea to a specific California substance that does not appear on the federal schedules, such as chorionic gonadotropin or, probably, khat. This defense should protect all immigrants, applies nationally, and is not likely to be overturned. See discussion at 11377 and see N.8 Controlled Substances at www.ilrc.org/chart. (Note that even with this defense, the person still might face some other penalties; see Part e.)

How to create an “inconclusive” (sanitized) record for this defense. The goal is to remove any reference to a specific substance from the defendant’s reviewable record of conviction (ROC). In a conviction by plea, the ROC includes the charge pled to, as amended (not including dropped charges); the plea colloquy transcript and/or written plea agreement; the judgment; and any factual basis for the plea agreed to by the defendant. See Shepard v. U.S., 544 U.S. 13, 16, 20 (2005). Counsel may need to bargain for a new, sanitized count, or create a record showing that a count was amended.

The ROC does not include other documents, such as the police report, pre-sentence report, or preliminary hearing transcript—unless the defendant stipulates that the document provides a factual basis for the plea. To avoid stipulating to any factual basis, see People v. Palmer (2013) 58 Cal.4th 110, People v. French (2008) 43 Cal.4th 36, 50-51. If you must stipulate, stipulate to a document that you identify or create that contains details except for the damaging information, such as a written plea agreement or sanitized charge. See People v. Holmes (2004) 32 Cal.4th 432. For example, “On the evening of June 15, 2019, on the corner of Webster and 21st Street in Oakland, California, I possessed a controlled substance in violation of H&S C 11377.”

GIVE THE DEFENDANT AND THEIR FAMILY, FRIEND, OR IMMIGRATION COUNSEL A COPY OF THE INCONCLUSIVE ROC. Again, this is the charge pled to, with any amendments, plea agreement, factual basis for the plea if any, and judgment. Obtain, or advise defendant to obtain, a transcript of the plea colloquy. This is best practice because it is possible that courts will rule that an immigrant who applies for relief has the burden of producing the entire ROC to prove that it is inconclusive.

For more on creating a clean ROC and factual basis strategies, see N.8 Controlled Substances at www.ilrc.org/chart.

b. Specific non-federal substance defense. A second type of defense is to negotiate a plea to a specific substance that does not appear on federal drug schedules, such as chorionic gonadotropin and probably khat, for 11377-11379. This defense prevents a CS conviction or drug trafficking AF for any immigration purpose, whether deportability or eligibility for relief. The strong specific substance defense is not at issue in Pereida, is very unlikely to be overturned in another case, and is given effect nationally. The problem is that this can be a difficult plea to negotiate—although California defenders have accomplished it. (Note that even with this defense, the person still might face some other penalties; see Part e.)

c. Meth is a federally-defined controlled substance — but is heroin? Beginning in August 2018, the Ninth Circuit for some months held that California meth is not a federal controlled substance, because the chemical make-up of meth as defined under California schedules explicitly includes geometrical isomers, while the federal definition does not. That made California meth overbroad and indivisible compared to federal “generic” meth. There were multiple decisions in the Lorenzo and Rodriguez-Gamboa cases, until in August 2020 the Ninth Circuit held that meth as defined under California law is a federal controlled substance, because the meth geometrical isomer does not really exist.²⁰⁷For the opinions on methamphetamines, see Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. Jan. 17, 2019), withdrawing Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. Aug. 29, 2018) and filing a memorandum decision that can be found at https://cdn.ca9.uscourts.gov/datastore/memoranda/2019/01/17/15-70814.pdf. See also U.S. v. Rodriguez-Gamboa, 946 F.3d 548 (remanding to district court for evidentiary hearing regarding the existence of the isomer) and United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020) (accepting the district court’s finding that the geometrical isomer in meth does not exist). Many thanks to the Federal Defenders for spotting the isomer issue both for meth and heroin.

Now, advocates in removal proceedings can consider the argument that California heroin is a non-federal substance. Heroin, prohibited under 11350-52, appears to have the same textual overbreadth as meth did: the California statutory schedule specifically includes geometrical isomers of heroin, but the federal schedule does not. Further, it appears that a geometrical isomer of heroin—“isoheroin”—does exist. ILRC will post an expert declaration on this if and when it becomes available. This is not an established defense, and criminal defense counsel should not consider this a safe plea; they should seek one of the other defense strategies described here. But if there is no other alternative, a plea to isoheroin appears to be better than a plea to some other substance in 11350-11352, and immigration advocates can raise it as a defense in removal proceedings.

d. Cannabis as a non-federally-defined controlled substance. Defenders must assume that cannabis under California law, including post-Prop 64, is a federally-defined controlled substance. But advocates defending in removal proceedings can assert that Prop 64 changed the California definition of cannabis, so that it is overbroad and indivisible compared to the federal marijuana definition, and that the Prop 64 definition even applies to some convictions from before Prop 64’s effective date of Nov. 8, 2016. See discussion at H&S C 11357(a)(2) (current), above.

e. Other immigration consequences occur even if these defenses prevail. A noncitizen can be found inadmissible if the government has “reason to believe” the person aided in trafficking (as opposed to giving away) a federally-defined controlled substance. This is based on facts, not a conviction, and therefore it is not controlled by the categorical approach. Even if you create a non-federal substance defense discussed above, which avoids a deportable and inadmissible drug conviction, the person still might be inadmissible—but not deportable—if the government can gather sufficient probative evidence that the person trafficked in a federal CS. You can do little to prevent this, except (a) try to keep the ROC clean of information that would prove this ground, and (b) warn the client that they may be inadmissible and they must not travel outside the U.S. or submit any papers to DHS without getting an expert opinion. Of course, this is a much greater risk if the conviction was for 11378-79, 11351-52, and similar trafficking offenses than for possession.

Finally, sale, possession for sale, and distribution of a CS has been held to be a CIMT, regardless of whether the substance appears on federal drug schedules.²⁰⁸See, e.g., Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). Assume that any 11351-52 or 11378-79 will be a CIMT, even if you can avoid the (generally far worse) controlled substance penalties. Simple possession is not a CIMT.

Negligently risking fire

Not AF

Not CIMT because negligence

Good alternative to arson, if possible to get.

Child endangerment involving conduct likely to cause GBI or death

(Wobbler)

No conviction of 273a(a) or (b) is a COV, because the minimum conduct is negligence and the statute is indivisible.²⁰⁹The 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).
The Ninth Circuit held that § 273a(a) is not divisible between the various prongs. Ramirez v. Lynch, 810 F.3d at 1134-1138. Therefore, no conviction of § 273a(a) is a COV. The same ruling must apply to § 273a(b), a lesser included offense to § 273a(a) that is identical to § 273a(a) except that it causes a risk of less serious injury.
But as always, the best practice is to get 364 days or less on each count, when that is possible.

No conviction of 273a(a) or (b) should be held a CIMT because the minimum conduct is negligence and the statute is indivisible.²¹⁰Moral turpitude requires reprehensible conduct with a minimum of reckless intent, or moral depravity. Negligent conduct never is a CIMT.

Section 273a is not a CIMT because the minimum conduct requires only negligence, and the statute is indivisible. See above endnote for discussion of Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016), which held that that because felony § 273a(a) is an indivisible statute that can be committed by negligence, no conviction can be held a COV. Section 273a can be violated by wholly passive conduct, or good faith but unreasonable belief that the conduct is in the child’s best interest: “the statute does not necessarily imply a general readiness to do evil or any moral depravity.” People v. Sanders (1992) 10 Cal.App. 4^th 1268, 1272-1275 (as a state CIMT case finding that 273a is not a CIMT, not controlling but informative). See also, e.g., People v. Pointer (1984) 151 Cal.App.3d 1128, 1131-1134 (macrobiotic diet resulting in severe malnutrition); and Walker v. Superior Court (1988) 47 Cal.3d 112, People v. Rippenberger (1991) 231 Cal.App.3d 1667 (273a includes failure to seek care for sincere religious reasons).

Crime of child abuse.

Defenders must assume that 273a(a) is a deportable crime of child abuse. See Advice for how to respond to a 273a(a) charge.

But imm advocates can fight this categorization, and the Ninth Circuit may take up the issue.²¹¹Advocates should argue that 273a(a) is not a crime of child abuse. They can argue, among other things, that child endangerment is distinct from child abuse, neglect, or abandonment. See sample brief at www.ilrc.org/crimes.  It is very possible that the Ninth Circuit will consider this en banc, as it voted to earlier before the case at issue was mooted out. In the Martinez-Cedillo case, the Ninth Circuit had held in a panel decision by Judge Bybee that § 273a(a) is a deportable crime of child abuse. The Ninth Circuit granted a petition for rehearing en banc, and designated the decision as non-precedential. Mr. Martinez-Cedillo died soon after that, and the court dismissed the appeal as moot and vacated the panel decision. See Martinez-Cedillo v Sessions, 869 F.3d 979 (9th Cir. 2018), rehearing en banc granted in Martinez-Cedillo v. Barr  918 F.3d 601 (9th Cir. March 18, 2019), appeal dismissed and panel decision vacated in Martinez-Cedillo v. Barr, 923 F.3d 1162 (9th Cir. May 16, 2019). The court may be willing to take up the issue again.

Responding to 273a(a) charge. Consider 273a(b) and/or an immigration-neutral felony or misdemeanor that will not cause deportability for child abuse, e.g., 460(a), 594, or, with sentence of 364 days or less, PC 32 or 136.1(b)(1) (trying to persuade another adult not to call police).

Instead of 273a(a), consider age-neutral offense such as 243, 245 or other (but keep minor age out of the ROC to prevent mistaken charge of child abuse). See endnote at PC 243(a) regarding age-neutral offenses.²¹²The BIA and courts admit 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 ILRC, Case Update: Domestic Violence Deportation Ground (August 2019) at www.ilrc.org/crimes.

Emphasize to prosecution that even misd 273a(a) will be charged as a crime of child abuse, and thus can cause the child to permanently lose their LPR or undocumented  parent.²¹³Even misdemeanor § 273a(a) can have terrible impact, depending on the case. The conviction will cause an LPR or refugee parent (and many others) to become deportable, so that they 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 Relief Toolkit, “Cancellation for Non-Permanent Residents” at https://www.ilrc.org/sites/default/files/resources/relief_toolkit-20180827.pdf. If available, PC 1001 misdemeanor pretrial diversion is not a conviction.

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.

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.

Grand theft

See PC 484, above

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 arguably not a CIMT if conviction occurred before Nov. 16, 2016. See PC 484

No other removal ground

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.

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.

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.²¹⁴See 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.

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.

Escape

Without force (a)

With force, including simple battery (b)

Get 364 days or less on any single count, to avoid an 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.

See citations and further discussion at this endnote, including for CIMT.²¹⁵Pen 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).

Pen C § 4532 as an AF as a COV. Section 4532(a) penalizes escape without the use of force, and this should not be held a COV. Section 4532(b) penalizes escape with the use of force, but arguably this is not a COV either, since it includes force at the level of battery. People v. Lozano, 192 Cal. App. 3d 618, 627, 237 Cal. Rptr. 612, 617 (1987). But since 4532 will be held an AF as obstruction if a sentence of a year or more is imposed, the COV ruling would provide little benefit.

Pen C § 4532 as a CIMT. Escape without use of force is not a CIMT, and is treated as a kind of regulatory offense. Even escape with use of force – including the minor force against people or property that is sufficient for 4532(b) — arguably is not a CIMT. See Matter of B—, 5 I&N Dec. 538, 541 (BIA 1953) (finding that a simple assault committed “knowingly” upon a prison guard as part of an attempted escape is not a CIMT), cited with approval in Matter of Fualaau, 21 I&N Dec. 475, 478 (BIA 1996), and see, e.g., U.S. ex rel. Manzella v. Zimmerman, 71 F.Supp. 534, 538 (E.D. Pa. 1947) (declining to find that “the action of an escaping prisoner involves that element of baseness, vileness or depravity which has been regarded as necessarily inherent in the concept of moral turpitude. On the contrary such action, while mistaken and wrong under these circumstances, does undoubtedly spring from the basic desire of the human being for liberty of action and freedom from restraint.”)

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.

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 AF (but is a deportable firearms offense.)

Weapon possession is not a CIMT.²¹⁶Possession 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.²¹⁷See, e.g. Ali v. Mukasey, 521 F.3d 737, 740 (7^th 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 n. 4, above, on the categorical approach. Or assuming it was divisible, see endnote for effect of information in the ROC.²¹⁸Conviction 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.

If § 12020 is held to be “divisible” as to the weapon, then the immigration authority can review the person’s record of conviction (ROC) to see if it establishes whether a firearm was the subject of their conviction. If the ROC identifies a specific non-firearm weapons (e.g., a dirk), then the conviction is not of a deportable firearms offense or an aggravated felony for any immigration purpose. If the ROC is vague as to the weapon (e.g., tracks the language of the statute, or the record was destroyed), then under the current rule in the Ninth Circuit, the conviction will not cause an LPR to become deportable based on a firearms offense because ICE cannot prove the weapon was a firearm, but it will be a firearms offense for the purpose of making an undocumented person, an already-deportable LPR, or other immigrant, ineligible to apply for relief because that person has the burden of proof and must prove the weapon was not a firearm. If the ROC specifically identifies a firearm, it will be a firearms offense for all immigration purposes.

If instead, former § 12020 were held to be “indivisible” as to the weapon, then no conviction would be a firearms offense for any immigration purpose as a matter of law, because the minimum conduct to commit the offense could involve a dagger or other non-firearm.

The same rules regarding the burden of proof would apply if § 12020 were to be held divisible for conduct, e.g., between possession and sale of a firearm, where possession is a deportable firearms offense but not an AF, and sale is both.

For more on the categorical approach and divisible statutes, see n. 4, above, or get expert help.

Misd is a “significant misdemeanor” for DACA, DAPA, enforcement priorities if it is held to involve a firearm; see note at PC 25400.

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.²¹⁹See 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.²²⁰See 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.²²¹An 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.²²²Conviction 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.²²³See 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.

Possess:
(a) Concentrated cannabis
(b) Marijuana, 28.5 grams or less
(c) Marijuana, more than 28.5 grams
(d) Marijuana on or near school grounds, ranked by age of defendant

Not AF, unless a prior possession is plead or proved
See Advice at current 11357(a), above, for argument that Cal cannabis is not a CS for immigration purposes

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.
Deportability. If no drug priors, conviction for possessing 30 gm or less of marijuana is not a deportable offense. This includes any conviction of (b). It includes conviction of (c) if ICE can’t produce evidence, including from outside the ROC, proving that the amount exceeded 30 gm. See current 11357(b), above.
Inadmissibility. All current and former 11357 offenses are inadmissible offenses. But if D has no drug priors, might be able to apply for 212(h) waiver for qualifying conviction of 30 gm or less. See current 11357(a), (b) 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.

False imprisonment by violence, menace, fraud, or deceit (Felony)

Should not be an AF as COV and should not be held divisible (see Advice), but best practice is to try hard to get 364 days or less on each count.

To avoid a possible wrongful charge as a COV, plead to false imprisonment by deceit, fraud, or menace. See Advice.

Should not be divisible and no conviction should be held a CIMT, but to most surely avoid a CIMT plead to menace, which Ninth Circuit held is not a CIMT, and do not plead to fraud. See Advice.

If it were held a COV, and V had domestic relationship, it would be deportable crime of DV. It should not be held a COV but see Advice. If 1 yr won’t be imposed, consider PC 32, 243(e), 136.1(b)(2), and offenses in Advice.

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 US 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 citations and further discussion at this endnote.²²⁵Felony Pen C § 237 is indivisible (not divisible).

Section 237(a) makes false imprisonment “effected by violence, menace, fraud, or deceit” a felony rather than a misdemeanor. Section 237(a) should not be held divisible between these means of committing the offense, because a jury is not legally required to unanimously agree upon which of these was used. See CALCRIM 1240 and see People v. Henderson (1977) 19 Cal. 3d 86, 95 (Section 237(a) does not set out four separate crimes; there is “no basis for severing false imprisonment by violence or menace from the offense of felony false imprisonment; the Legislature has not drawn any relevant distinctions between violence, menace, fraud, or deceit.”), partially reversed on other grounds by People v. Flood (1998) 18 Cal 4th 470, 484. The Ninth Circuit suggested in dicta that § 237(a) is divisible, but it did not cite to any California analysis of the elements or undertake a federal divisibility analysis according to Supreme Court or Ninth Circuit precedent. Turijan v. Holder, 744 F.3d 617, n. 7 (9th Cir. 2014).

Pen C § 237(a) by force or menace carries the same or fewer immigration consequences as kidnapping, Pen C § 207(a). Felony false imprisonment is a lesser included offense of kidnapping by force or fear, Pen C § 207(a). See, e.g., People v. Apo (1972) 25 Cal.App.3d 790, 796). Because kidnapping has been held not to be a COV or CIMT, Pen C § 237 by force or menace is not either.

Pen C § 237(a) as a crime of violence (COV). The Ninth Circuit held that Pen C § 207(a) (of which § 237(a) is a lesser included offense) is not a COV under 18 USC § 16(a), because § 207(a) lacks as an element the use of violent force and can be committed by “any means of instilling fear,” including means other than force, for example by threatening to arrest the person. Delgado Hernandez v. Holder, 697 F.3d 1125, 1127 (9th Cir. 2012). Kidnapping by fraud under § 207(d) also is not a COV under the § 16(a) definition. See United States v. Lonczak, 993 F.2d 180, 183 (9th Cir. 1993), considering a federal standard identical to 18 USC § 16(a), cited at Delgado-Hernandez, 697 F.3d at 1128. Because § 237(a) is a lesser included offense of 207(a), it also is not a COV.

Regarding Pen C § 237 itself, the term “violence” used for felony false imprisonment has a specific definition, which does not require actual violence but just that “the force used is greater than that reasonably necessary to effect the restraint.” People v. Castro (2006) 138 Cal. App. 4th 137, 140. In Castro, the court found that evidence that the defendant took the victim by the arm and pulled her a few steps toward his car, as opposed to simply holding her still, before she ran away was sufficient to support a conviction for false imprisonment by violence. “In the present case, appellant grabbed the victim and turned her around. If that is all that had happened, we would agree with appellant that his conduct amounted only to misdemeanor false imprisonment. But appellant pulled her toward his car, an act more than what was required to stop her and keep her where she was located.” Id. at 143-144. Generally, this level of de minimus force has been held not to be a COV under 18 USC § 16(a). However, the Supreme Court’s decision in Stokeling v. U.S., 139 S.Ct. 544 (2019) increases the risk that ICE may wrongly charge felony 236/237 as a COV. The Court held that Florida robbery is a COV under the ACCA definition (which is nearly identical to 18 USC 16(a)) because it requires sufficient force to “overcome the resistance of the victim”—even though that can involve a low level of force, such as the force required to grab something while the victim briefly holds on. ICE might charge that under Stokeling, felony false imprisonment, Pen C §§ 236/237(a), is a COV if it is committed by “violence,” on the grounds that this requires an application of force (no matter how minor) that is sufficient to overcome the will of the victim. Advocates should assert that even if that conduct were found to meet the definition of a COV, no conviction of §§ 236/237 can be a COV because the statute is indivisible between the four means, and the minimum conduct required for guilt is not a COV. But to further protect the defendant, who may be unrepresented and unable to present this argument, criminal defense counsel should plead specifically to menace or deceit rather than force in a felony case.

False imprisonment committed by fraud or deceit is not a COV even post-Stokeling. See, e.g., U.S. v. Lonczak, supra, holding that kidnapping effected by fraud under Pen C § 207 is not a COV. False imprisonment committed by menace also is not a COV because there is no requirement that the menace be threat of force. For example, it can include threat of arrest (People v. Moore (1961) 196 C.App.2d 91, 99); see also People v. Majors (2004) 33 Cal.4^th 321 (threat of arrest satisfies force or fear requirement for kidnapping). See also discussion of People v. Islas (2012) 210 Cal.App.4th 116 in Turijan v. Holder, 744 F.3d 617, 621-622 (9th Cir. 2014), holding that Pen C § 237(a) by menace is not a CIMT, because it was accomplished when the defendants hid from the police in another’s apartment but did not use weapons, did not make threats, did not touch the victims, and expressly stated they would not harm the victims).

Pen C § 237 as a CIMT. The Ninth Circuit held that a conviction for kidnapping under Pen C § 207(a) is not categorically a CIMT because it can be committed with good or innocent intent, and without the intent to instill fear in the victim, 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, 1209 (9th Cir. 2013). Because § 237(a) by means of violence or menace is a lesser included offense of § 207(a), it also is not a CIMT.

Specifically concerning § 237(a), a conviction for felony false imprisonment committed by menace is not a CIMT. It is a general intent crime that does not require an evil purpose. It does not require the threat or use of violent force. The Ninth Circuit found that § 237(a) by menace is not a CIMT because it encompasses conduct such as hiding in another’s apartment from the police where the defendants did not use weapons, did not make threats, did not touch the victims, and expressly stated they would not harm them. Turijan v. Holder, 744 F.3d 617, 621-622 (9th Cir. 2014).

As discussed in the crime of violence section above, false imprisonment by violence does not require actual violence, but requires only that “the force used is greater than that reasonably necessary to effect the restraint,” including grabbing the victim’s arm and moving her a few feet. See discussion above of People v. Castro, 138 Cal. App. 4th 137, 140 (Cal. App. 2d Dist. 2006). Pulling someone a few feet by the arm is similar to conduct required for a simple battery. Simple battery has been held not to rise to the level of a CIMT, even when the defendant and victim shared a position of trust such as being married. See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006).

While false imprisonment with intent to defraud might be a CIMT, intent to deceive is not necessarily a CIMT. It can be done in a misguided attempt to do good. See, e.g., People v. Rios (1986) 177 Cal.App.3d 445 (father convicted of felony false imprisonment by deceit for taking infant to Mexico because he believed mother was seriously neglectful).

The Ninth Circuit held that false imprisonment under Hawaiian law is a CIMT, but that offense is defined as “knowingly restrain[ing] another person under circumstances which expose the person to the risk of serious bodily injury.” Haw. Rev. Stat. § 707-721(1). See Fugow v. Barr, 943 F.3d 456, 458 (9th Cir. 2019) (distinguishing Hawaii false imprisonment from California burglary, which is not a CIMT).

Felony 236/237(a) is a good, non-strike alternative to violent offenses. Under Ninth Circuit precedent discussed in the above endnote, because the minimum conduct required for guilt is low and the California Supreme Court held that the statute is not divisible into different elements, no conviction should be a CIMT or COV for any purpose, regardless of info in the ROC—even under the recent Stokeling decision.

But the disadvantage to 236/237 is that there is not yet BIA precedent or an on-point Ninth Cir decision on the offense as a whole, or interpretations of the definition of COV under Stokeling. To be safe, counsel should arrange a plea to deceit or menace, and keep violence out of the record, but a plea to force should not amount to a COV or CIMT because the statute is indivisible. See endnote.

If 1 year must be imposed, see more secure offenses such as PC 460(a) or (b), 487, 594. If they are not possible, this is a reasonable choice for 1 year—but the person should get an imm lawyer.

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.

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: Possible for felony if aggregate totals $950 or less. See Advisory Prop 47 & Immigrants at www.ilrc.org/crimes

Child endangerment involving conduct not likely to cause GBI or death

(Misdemeanor)

No conviction of 273a(a) or (b) is a COV; see PC 273a(a), above.

No conviction should be held a CIMT; see PC 273a(a), above.

Crime of child abuse.

The BIA stated 273a(b) never is a deportable crime of child abuse.²²⁶The 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, Case Update: Domestic Violence Deportation Ground (August 2019), both at www.ilrc.org/crimes. This should be an immigration-neutral offense.

This 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.

Communicating with a minor (known or RTB), with intent to commit certain offenses

Assume it is divisible: an AF if the intended offense is an AF.

If intended offense is 207(a), 288(c)(1), or sexual conduct  with a person under age 18, it should not be SAM or a COV, to the extent that these offenses continue not to be

See Advice.

Ninth Cir held it is divisible as a CIMT, according to the intended offense combined with elements of 288.3:

Not CIMT:

-288.3 with intent to commit 207(a).

-Arguably, 288.3 with intent to engage in  sexual conduct with minor under age 18.

Yes CIMT:

-288.3 with intent to commit 288(c)(1).

-Likely 273a and other intended  offenses.

See Advice.

Deportable child abuse.   Arguably no 288.3 is a crime of child abuse. The BIA held that a crime of child abuse requires an actual child victim, not a police officer posing as a child, whereas 288.3 can involve an officer posing as a child.

Defenders should plead to the officer, or leave the record vague, but advocates have a strong argument that the offense is not divisible between officers and actual minors, and therefore that no 288.3 is a crime of child abuse.²²⁷Arguably PC 288.3 is not deportable child abuse. The BIA held that the generic definition of a deportable crime of child abuse under 8 USC 1227(a)(2)(E)(i) 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), citing 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. People v. Korwin (2019) 36 Cal. App. 5th 682. Therefore it is overbroad compared to the definition of child abuse. Section 288.3 should not be held to be divisible between an officer and a minor, because the statute is not phrased in the alternative in that manner, which is the first requirement for a divisible statute. See n. 4, above.

See case citations, list of intended offenses, and further discussion here.²²⁸288.3 as a CIMT. PC 288.3 punishes a person who communicates with someone the person knows, or reasonably should know, is a minor, with an intent to commit one of the following enumerated offenses: “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.” The 288.3 sentence is equal to the sentence for attempt to commit the intended offense.

In Syed v. Barr, 969 F.3d 1012, 1017-18 (9th Cir. 2020), the Ninth Circuit held that 288.3 is overbroad and divisible as a CIMT. Section 288.3 is a CIMT only if its elements, combined with the elements of the intended offense, amount to a CIMT. Syed found that because 288.3 itself requires that the person “knows, or reasonably should know” that the victim is a minor, it adds that element to the intended offense. This allowed the court to find that a conviction for PC 288.3 with intent to commit PC 288(c)(1) is a CIMT, even though PC 288(c)(1) itself was held not to be a CIMT in Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018). Syed found that the basis for the Menendez holding that 288(c)(1) is not a CIMT was that 288(c)(1) lacks a requirement that the person knew or should have known that the victim was a minor. (Arguably this oversimplifies the Menendez decision, which based its ruling on various factors. See Menendez at 472-474.) Syed found that when 288(c)(1) is coupled with 288.3, this element of guilty knowledge of age is supplied. “Read together, §§ 288.3(a) and 288 necessarily involve an ‘intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires’ of the offender or the victim child—knowing (or having reason to believe) the child is aged 15 or younger.” Syed at 1019.

Under this reasoning, 288.3 with intent to commit PC 273a is not necessarily safe. While alone 273a is not a CIMT, this is because it can involve negligence, and PC 288.3 would be held to add intent. Most other potential intended offenses already are CIMTs.

However, Syed found that if the intended offense were PC 207(a), then 288.3 would not be a CIMT because its elements plus those of 207(a) is not a CIMT. This also should apply to offenses that are similar to 261.5(c), consensual sex with a person under age 18, which is not a CIMT; such as 288.3 with intent to commit 286(b)(1), 287(b)(1), or 289(h). In fact the 288.3 plea would be better, because arguably the 288.3 could not be held a crime of child abuse (because it can include an officer posing as a child; see above endnote), while the BIA apparently has considered holding that 261.5(c) is child abuse.

Mr. Syed pled guilty to Count 2, which alleged that he violated 288.3 by communication with intent to commit PC “288,” with no allegation of 288(a), (b), or (c). The charge tracks the language of 288.3, which also lists simply “288” as an enumerated offense. That is why Syed had to reach the consequences of 288(c)(1).  Syed held that because Mr. Syed specifically pled guilty to Count 2, he was convicted of those elements, despite his vague statement at the plea hearing.

288.3 as an AF. There is no ruling on this, but based on the Ninth Circuit’s finding that 288.3 is divisible as to the intended offense for CIMT purposes (in Seyd, discussed above), assume that its status as an AF will be determined by whether the intended offense, plus the added elements of intentional conduct and knowledge or reason to believe the victim is a minor, is an AF, as either SAM or as a COV with a year imposed. Of these, arguably 288.3 with intent to commit 207(a), 288(c)(1), probably 273a, 311.11, and listed offenses involving consensual sex with a person under the age of 18 (such as 286(b)(1), 287(b)(1), 289(h)) should not be an AF.

The only immigration advantages to a plea to 288.3(a) are (1) it should avoid deportability for child abuse (due to posing police officer) and (2) it likely has a shorter potential sentence than the intended offense because the sentence is the same as attempt to commit that offense:

The disadvantage is that while 288.3 takes on the character and immigration consequences of the intended offense, it also adds its own elements to that offense, which can increase the penalties. 288.3 adds the elements of:

-Knowing or having reason to believe the victim is a minor. This is why the Ninth Circuit held that 288.3 / 288(c)(1) is a CIMT, although 288(c)(1) alone is not. Consider a plea to 288(c)(1) alone, or attempt, if avoiding a CIMT is critical;

-Intentional conduct. That is why 288.3 / 273a is a likely CIMT, at least to the extent 273a avoids being a CIMT only because it is committed by negligence.

Sex with a person under the age of 18: Because 261.5(c) is not an AF or CIMT, these similar 288.3 intended offenses also should not be: 286(b)(1), 287(b)(1), 289(h).

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

.

Flight from peace officer while driving against traffic

Try to get 364 days or less, in case COV definition is changed to include recklessness

Yes CIMT²²⁹In 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. This is not a COV under the current definition, which requires intent to use or threaten force. But if the Supreme Court expands the COV definition to include recklessness, 2800.4 possibly would be held a COV even though it involves willful as opposed to reckless intent.