California Chart (Updated August 2023)

California Chart (Updated August 2023)2023-09-20T21:01:44+00:00

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Code SectionOffenseAggravated Felony (AF)Crime Involving Moral Turpitude (CIMT)Other Removal GroundsAdvice and Comments
B&P C 4324

(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 a conviction of a CS offense. The term “drug” is overbroad because it includes noncontrolled substances (CS), and is not a divisible term. See discussion and other options at 11377.

B&P C 4324

Drug AF: Good alternative to H&S C 11173, 11368, as a non-CS offense and a non-AF. A state offense is a drug trafficking AF if it is analogous to certain federal drug felonies. This is not an analogue to 21 USC 843(a)(3) because it does not have a CS as an element (see column to the left). But where possible, best practice is to sanitize ROC of mention of a specific CS.

Forgery AF: “Forgery” is an AF if 1 year or more is imposed. Assume (a) meets the AF definition of forgery. Imm counsel can investigate arguments that (b) does not.1An offense “relating to” forgery is an aggravated felony if a sentence of a year or more is imposed. 8 USC § 1101(a)(43)(R). Immigration counsel can investigate defenses to (b), possession of a drug obtained by a forged prescription, based on the fact that the Ninth Circuit has held that the “relating to” language cannot be over-extended and that forgery requires possession of a forged instrument. Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 876 (9th Cir 2008). Section (b) requires only possession of the drug obtained with a forged instrument, and not possession of the instrument itself. On its face, it does not require that the defendant knew that the drug had been obtained by forgery. But crim defense counsel should act conservatively and obtain 364 days or less in all cases

30
B&P C 7028(a)(1)

Contractor without a license

Not AF

Should not be a CIMT because it’s a regulatory offense. See B&P C 25658.

No

B&P C 7028(a)(1)

40
B&P C 25658(a)

Selling, giving liquor to a person under age 21

Not AF.

Not CIMT because regulatory offense.2This is a regulatory offense, and many state laws include exceptions permitting persons under age 21 to buy or use alcohol, for example with parents’ permission or at a college event. “Violations of liquor laws do not involve moral turpitude, and we do not believe [convictions for selling liquor to a minor] would be deportable offenses.” Matter of P, 2 I&N Dec. 117, 120-21 (BIA 1944) (dictum). In Matter of V. T., 2 I&N Dec. 213, 216-17 (BIA 1944), the BIA, in viewing the California offense of contributing to the delinquency of a minor, listed various California convictions under that law which would not involve moral turpitude, including a conviction for selling or serving intoxicating liquor to a minor.

Cannot be deportable crime of child abuse because not “abuse” and V under 18 is not an element. See Advice.

B&P C 25658(a)

Great alternative to providing CS to a minor, if obtainable.

Not child abuse, which applies to V’s under 18, not 21. Statute is not divisible as to age of V. But to prevent a mistaken charge, keep CS and V under 18 out of ROC.

50
B&P C 25662

Possession, purchase, or use of liquor by a minor

Not AF.

Not CIMT

Not a removal ground per se, but see Advice re inadmissible for alcoholism

B&P C 25662

Multiple convictions might be evidence of alcoholism, which is medical inadmissibility ground (8 USC 1182(a)(1)) and a bar to “good moral character.”

60
Health & Safety C 11173(a), (b), (c)

Obtain CS by fraud

AF CS. Assume it is an AF, but see Advice

AF Forgery: Should not be AF as forgery unless false document is used and 1 yr imposed on a single count.

Yes CIMT, except that (d), affixing a false label, might not be.

Assume a deportable and inadmissible CS offense but see Advice.

Health & Safety C 11173(a), (b), (c)

AF. May be AF as analogue to 21 USC 843(a)(3) (obtain CS by deceit), although imm counsel may identify defense arguments.

The “non-federal controlled substance” defenses may apply here. See Advice at 11350, and a more comprehensive discussion and instructions at 11377. If that is successful, the conviction is not an AF or CS offense.

A much better plea is B&P C 4324 (with less than 1 year sentence). If that is not possible,  see PC 372.5, possession H&S 11377 plus other distinct offense such as 529(a)(3), 530.5(a), PC 32, or if necessary forgery, fraud.

 

70
H&S C 11350(a), (b)

Possess controlled substance

Not an AF, except for the below exceptions.

Possession of a CS is an AF if (a) it is possession of flunitrazepam or (b) it is a second offense, where the first possession was pled or proved for a recidivist sentence enhancement.

Not a CIMT.

Deportable and inadmissible CS offense. But see Advice regarding PC 372.5 and other defenses, which are set out at 11377.

There is an argument but no precedent that a California conviction involving heroin is not a conviction of a CS offense. See Advice 

H&S C 11350(a), (b). 

Information for all charges, 11350-11352.

See also   ILRC, How to Defend Immigrants Charged with Drug Offenses (2023).  

See Advice to 11377, below, for further discussion of the following defenses:

1. Plead to any immigration-neutral (or at least less bad) non-drug offense.  

2. Take pre-trial diversion, PC 1000, if D is likely to complete it

3. Plead to a specific non-federal substance, e.g., chorionic gonadotropin (11377-79). Immigration advocates can argue that heroin (11350-52) and marijuana as defined under California law are not a federal CS, but defenders should not rely on this as there is not yet a precedent decision. A federal district court held that  California meth (11377-11379, 11364, 11370.1, 11550) is not a federal CS. See discussion of United States v. Verdugo, __ F. Supp. 3d __ (S.D. Cal. July 17, 2023). at 11377, below. 

4. Plead to PC 372.5 (2023) or, with less than a year imposed, 32. These should not be convictions of a CS offense, an AF, or CIMT. But these are better for LPRs contesting deportability, as ICE may pressure the person to admit the underlying conduct, which potentially could trigger inadmissibility and ineligibility for relief (but not deportability). See Advice to PC 372.5.

5. Less secure defense for LPRs: An older defense was to create a record of conviction that does not name any CS, referring throughout to “a controlled substance” rather than, e.g., “morphine.” Since the 2021 decision in Pereida, however, this only helps LPRs to contest deportability, and even that is not secure. Any of the other options are better, but if they are not available this one is worthwhile for LPRs.

6. Potential defense: Might D be a victim of human trafficking or domestic violence who is committing a drug offense under coercion? Coercion can mean under direct orders (e.g., to sell drugs) or coercion arising from the victimization, without orders (e.g., taking drugs in response to pain or despair). This could be a defense to a current charge; a vacatur for a prior conviction; and/or a possible path to legal status. Even if this is unlikely to succeed as a full defense to a charge, good evidence and a potential defense may improve plea bargaining.

7. Eliminate a prior drug conviction with PCR. Additional PCR exists for minor drug offenses 

80
H&S C 11351

Possess CS for sale

AF unless a non-federal substance defense applies. For immigration purposes, even a plea to offering to sell at 11352 is far better.
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.

H&S C 11351 

See further discussion at 11378 and see ILRC, How to Defend Immigrants Charged with a Drug Offense (2023). 

Avoid an AF: Do not plead to 11351. Instead, try any of the defenses listed at Advice for 11350, above which are further discussed at Advice for 11377, below.

If no other defense is possible, plead up to 11352, offering to distribute. This is a deportable and inadmissible CS offense, but at least it is not an AF in immigration proceedings held within the Ninth Circuit only. In fact, recommending a plea to 11351 without advising about the advantage of pleading up to “offering” under 11352 has been held ineffective assistance of counsel.3See People v. Bautista, (2004) 115 Cal.App.4th 229; see also In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (where defendant was a noncitizen, failure to advise and consider pleading up from § 11359 to § 11360 was ineffective assistance of counsel). Based on this, consider post-conviction relief to eliminate any prior 11351 conviction.

90
H&S C 11351.5

Possess cocaine base for sale

Yes AF

CIMT

Deportable, inadmissible for CS conviction and inadmissible because gov’t has “reason to believe trafficking. See 11379.

H&S C 11351.5

Very bad immigration plea. 11351.5 is even worse than 11351 in that there is no non-federal substance defense.

Careful plea to 11352 is better. See discussion of those defenses at 11379.

100
H&S C 11352(a)

-Sell, give away, or transport for sale (1/1/14) or personal use (pre-1/1/14)
-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 alternatives.

H&S C 11352(a)

See further discussion at 11379 and see ILRC, How to Defend Immigrants Charged with Drug Offenses (2023).  See advice for 11350.

Better alternatives are listed at Advice to 11350, above, and discussed further at Advice to 11377, below. Please review these before accepting a plea to 11352.

If you must plead to 11352, a plea to “offering to” distribute (or offering to sell) will be a CS and a CIMT – but in immigration proceedings held within the Ninth Circuit only, it will not be an AF.4See, e.g., U.S. v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc) and see US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc), holding that §§ 11350-52, 11377, are divisible between the offense (an AF) and “offering to” commit the offense (not an AF).

110
H&S C 11358 (Analysis is not changed by Prop 64)

Plants, cultivates, harvests, dries, etc. cannabis plants
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 and for the argument that the California definition of cannabis is broader than the federal definition of marijuana.
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

Assume deportable and inadmissible for CS conviction, although see Advice. Consider alternatives such as PC 32, 592, etc. at 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.

H&S C 11358

Avoid this plea because the offense – even for personal use — has been held to be analogous to a federal “aggravated felony.” There are arguments against this, below, but they are not guaranteed to win.

Argument. Arguably no California cannabis conviction from on or after November 9, 2016 is a controlled substance offense or drug trafficking aggravated felony for immigration purposes, because as of that date Prop 64 defined California “cannabis” more broadly than the federal definition of “marijuana.” See discussion at Advice at current 11357(a)(2). Under that argument, 11358 is not a controlled substance or aggravated felony conviction.

Infraction. Conservatively assume even a California infraction in adult (not juvenile) court is a “conviction” for imm purposes because some officers are treating it as such, arguably in error. If it is held a conviction, this could have the absurd result that an 11358(b) infraction is an “aggravated felony.”

AF: Plead to a non-drug crime, e.g., PC 32 or 136.1(b)(1) with less than 1 yr, 460(a), (b), 592 theft of water by fraud (wobbler), 594, disposing hazardous waste, or other offenses. (If necessary and if D’s immigration case can survive it, plead to possession per 11357(b), or to 11377 with an unspecified substance. See 11377.)

Or, take PC 1000 if D is a good candidate. Success will mean no conviction or admission of a controlled substance offense. See 11377.

If D is a refugee, asylee, or potential applicant for asylum, see Advice about trafficking at 11360, below.

Victims of human trafficking or domestic or sexual violence. Some people who work as laborers unlawfully growing mj, or in any other unlawful work (mules, drug dealers, sex workers, etc.), are victims of human trafficking and are committing crimes under duress – coerced either by the trafficker or as a direct result of their victimization (e.g., taking drugs due to despair). This could support a criminal defense to charges and/or a vehicle to obtain post-conviction relief for a prior conviction. 

In 2022, the trafficking defense and vacatur were extended to survivors of intimate partner violence or sexual violence who were coerced to commit crimes. This creates possibilities for the large population of defendants who are victims of domestic violence.

D also might be eligible to apply for lawful immigration status, with a T visa, a U visa, or relief under VAWA.

If a defendant might benefit from one of these options, see further discussion at ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022), and see this endnote for basic information and free resources to assist in representation.6Survivors of trafficking, or of intimate partner or sexual violence. California has passed laws to protect criminal defendants who are survivors of human trafficking (HR) or, as of 2022, of intimate partner or sexual violence (DV), if they are found to have committed the crime/s as a direct result of their victimization. These defendants might be eligible for immigration status as well, either for a “T visa” as victims of trafficking or a “U visa” or VAWA relief as victims of domestic violence. See resources at the end of this endnote.

This section will provide basic information and resources. For further discussion see ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022), https://www.ilrc.org/resources/new-options-survivors-trafficking-and-domestic-violence 

Definitions: “Human trafficking” does not refer to taking people across national borders. It is broadly defined for this purpose as labor or services obtained by overcoming the will of the victim. “Coercion” does not require direct coercion by the trafficker or attacker; one only must be “coerced to commit the offense as a direct result” of the victimization. For example, a trafficked juvenile who illegally carried a knife with the idea of preventing the trafficker from putting him into a car was potentially eligible for the defense, because he was “coerced to commit the offense as a direct result of being a human trafficking victim.” See In re D.C., 60 Cal. App. 5th 915, 919 (2021).

Defense to a criminal charge. See PC §§ 236.23, 236.24. This is a potential defense to any charged offense/s other than “violent felonies” as defined at PC § 667.5(c). Defendants must show that they were “coerced to commit the offense as a direct result of being a victim of [HR or DV] at the time of the offense and had a reasonable fear of harm.” For example, San Francisco public defenders have won jury trials on behalf of Hondurans charged with drug sales, by showing the Hondurans were trafficked and coerced to sell fentanyl.  Also, even if one cannot win a complete defense, availability of the defense may help to bargain for a plea that is immigration-neutral or otherwise beneficial. 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 immigration “aggravated felonies” even after Prop 64. By demonstrating that defendants fit the profile and were likely victims of human trafficking, Sacramento public defenders were able to negotiate pleas to misdemeanor PC § 32, a far better plea for a noncitizen. This was accomplished even though the defense itself could not go forward because the survivors were afraid to testify against their traffickers. 

Post-conviction relief. California provides a vehicle to obtain post-conviction relief (PCR) to erase a prior conviction if the conduct was due to being a victim of HR or, as of 2022, of DV. See PC §§ 236.14, 236.15. In some cases, this PCR vehicle may be more acceptable to the prosecution than, e.g., a PC § 1473.7. 

To have effect in immigration proceedings, any PCR must be based on a legal error in the original case. Effective 2023, §§ 236.14 and 235.15 were amended to clarify that the vacatur is based on error, which was that the defendant did not have the mens rea required to commit the offense, due to the coercion. As always with PCR for immigrants, it is critical to draft a proposed order for the judge that clearly identifies legal error as the basis. Consult with a PCR expert if needed, and see PCR resources at the end of this note. 

Immigration remedies. In some cases, the defendant may be eligible for a “T” visa for trafficking victims or a U visa for victims of certain crimes including violent or sexual assault. See 8 USC §§ 1101(a)(43)(T), (U). In this process, one first applies for a temporary, non-immigrant T or U visa and later for lawful permanent residence (a green card). It is possible that the person’s children and (innocent) spouse can obtain status as well. Victims of intimate partner violence also may qualify for relief under VAWA, if the abuser was their USC or LPR spouse. Some nonprofit agencies are expert in these applications and can offer free help to the defendant. 

Resources: For the criminal case, CAST (Coalition to Abolish Slavery and Trafficking) in Los Angeles is an excellent resource. See www.castla.org. They offer free technical assistance 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 information on relief, see CAST materials as well as the brief summary of requirements for, and criminal record bars to, T visas, U visas, and VAWA in § N.17 Immigration Relief Toolkit, and see a variety of materials at https://www.ilrc.org/u-visa-t-visa-vawa, which also has links to webinars and manuals. 

For information on post-conviction relief, see ILRC Practice Advisory, Overview of California Post-Conviction Relief (July 2022) and see the ILRC manual, California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes (Jan. 2023), https://store.ilrc.org/publications/california-post-conviction-relief-immigrants-how-use-criminal-courts-erase-immigration.

160
H&S C 11359 (Analysis is not changed by Prop 64)

Possess cannabis for sale

Yes AF, without exception, but see Advice

Yes CIMT.

Deportable and inadmissible CS offense but see Advice.

H&S C 11359

Argument. This plea should be avoided but see Advice at current 11357(a)(2) for an argument that California cannabis is not a controlled substance for imm purposes, which would defeat the AF and CS charge. This would apply to convictions on or after 11/9/16 and arguably to some earlier ones that are re-designated under Prop 64 provisions.

Bad plea. Consider options, defenses, in Advice to 11358, 11360. Assuming arguendo that the substance matches the federal definition of marijuana, then 11359 is an automatic aggravated felony, while parts of 11360 are not aggravated felonies.

Seek post-conviction relief for a prior conviction. Advising a noncitizen to plead to 11359 without advisal re 11360 is ineffective assistance of counsel.7See People v. Bautista, (2004) 115 Cal.App.4th 229; see also In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (where defendant was a noncitizen, failure to advise and consider pleading up from § 11359 to § 11360 was ineffective assistance of counsel).

See § N.8 Controlled Substance.

170
H&S C 11360 (Analysis is not changed by Prop 64)

Unlawfully sell, import, give away, administer, or (since 1/1/16) transport marijuana for sale
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.

H&S C 11360

Argument. This plea should be avoided but see Advice at current 11357(a)(2) for an argument that California cannabis is not a controlled substance for imm purposes, which would defeat AF and CS charges. This would apply to convictions on or after 11/9/16 and arguably to some earlier ones that are re-designated under Prop 64 provisions

Giving away mj. For discussion and citations, see endnote.8Not an aggravated felony. Generally, distributing a controlled substance is a felony under federal law and therefore is an aggravated felony under 8 USC § 1101(a)(43)(B). However, 21 USC § 841(b)(4) provides that “any person who violates [the statute] by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor. This means that the offense is a federal misdemeanor and therefore is not an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184, 193-99 (2013).

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 is 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.

180
H&S C 11364

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.

H&S C 11364

See Advice to 11377 and see § N.8 Controlled Substance.

1. Try hard to plead to a non-drug offense. Even the most minor drug offense can have catastrophic immigration effect.

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

3. Consider PC 32 or 372.5, alternative to drug pleas.

4. Marijuana. While 11364 technically might not apply to cannabis, it sometimes has been used. For past convictions, a first conviction for possessing paraphernalia relating to marijuana would qualify for the advantages of first possession of 30 grams 9Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). (although 11364 technically does not extend to mj.) See H&S C 11357(a) (current) for information on that, as well as on an argument that California cannabis is not a controlled substance for imm purposes.

5. Consider post-conviction relief for prior cases. This includes PC 1203.43 treatment for prior DEJ pleas; Lujan-Armendariz treatment for a minor conviction from before 7/15/11; PC 1473.7, and several other California vehicles. See 11377 and materials at www.ilrc.org/immigrant-post-conviction-relief

190
H&S C 11365

Aid/Abet use of CS (Presence where CS is used)

Not AF

Not CIMT

Deportable and inadmissible CS conviction unless non-federal substance defense.

H&S C 11365

See Advice at 11364.

The non-federal substance defenses may be available for 11365, but 11377 is best choice for this defense; see 11377.

200
H&S C 11366, 11366.5(a)

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

11366 is AF as a federal analogue.10Section 11366 was held an AF as a federal analogue to 21 USC § 1856 in Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006), but see the dissent by Judge Pregerson. Note that the case did not discuss whether § 11366 reaches substances that are not on federal drug schedules. Immigration advocates can investigate this defense. See discussion of requirement of a federally defined controlled substance in Mellouli v. Lynch, 135 S. Ct. 1980 (2015).
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.

H&S C 11366, 11366.5(a)

This is a bad plea. See H&S 11377, 11379 (“offering”), public nuisance offenses, e.g., PC 370, disposal of hazardous waste, instead.

The “unspecified controlled substance defense” may apply to 11366.5, although 11377, 11379 is a better vehicle. Imm advocates may investigate whether this defense also applies to 11366. See instructions at 11377.

210
H&S C 11368

Forged prescription to obtain narcotic drug

Assume AF as federal drug analogue but see Advice re possession.
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.

H&S C 11368

AF. Obtain or acquire CS by fraud is an AF as analogue to 21 USC 843(a)(3). (If possessing a drug acquired by fraud is punishable under 11368 but not punishable under 843(a)(3), then 11368 may not be an AF.)

Try to plead to B&P C 4342, which is not a CS offense. Or plead to simple possession plus another offense such as 529(a)(3), 530.5, PC 32, fraud, or (with 364 days or less imposed) forgery.

PC 1000/DEJ. 11368 is eligible for current pretrial diversion and prior DEJ if drug was obtained by fictitious prescription for use only by D. If D can complete the program, consider pretrial diversion. If D completed or can complete prior DEJ, use PC 1203.43 to eliminate the DEJ “conviction.” See 11377.

220
H&S C 11370.1

Possess CS while armed with firearm

Not AF (no federal analogue)

Arguably not a CIMT; see Advice

Yes, deportable and inadmissible CS offense.
Not a deportable firearms offense, unless one can plead to a non-federal substance. See discussion of the possible advantage of pleading to meth at Advice.  

Not a deportable firearms offense.

See Advice.

H&S C 11370.1

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. Note, however, that in 2023 a federal district court held that meth as defined under California law does not meet the definition of a federal CS. See discussion of U.S. v. Verdugo at 11377, below. Unless Verdugo is overturned, if D cannot avoid pleading to 11370.1 the best option is to designate meth. 

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

230
H&S C 11378 H&S C 11351 uses same analysis

Possess for sale any of several controlled substances (CS) that are defined by California statute. Very bad plea.

Yes, automatic AF, except see 11377 regarding the non-federal substance defenses. But even with such a defense, the best course is to pursue strategies discussed at 11377, including: pleading instead to a non-drug offense, even a serious one; pleading to PC 372.5 (or PC 32 with a sentence of 364 days or less), if the client can survive that (it is easier for an LPR than an undocumented person to use 372.5 or 32); plead to a specific non-federally defined substance; plead down to 11377 if the client can survive that, or seek  diversion.

If none of this is possible, D should consider pleading up to 11379 offer to give away (or if necessary, offer to sell). This is a deportable and inadmissible CS conviction, but at least it is not an AF in immigration proceedings arising within the Ninth Circuit only. (If D ends up in immigration proceedings outside the Ninth Circuit, this will be an AF.) Pleading up is counter-intuitive but may be necessary for an immigrant D who wishes to remain in the U.S.—especially if the person is an LPR. It has been held ineffective assistance of counsel to fail to advise and consider the 11352/11360/11379 option, rather than 11351/11358-11359/11378 for a noncitizen D.11See discussion in People v. Bautista, (2004) 115 Cal.App.4th 229, In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (if defendant is a noncitizen, failure to advise and consider pleading up from § 11378 to § 11379 is ineffective assistance of counsel). See discussion at § 11379 of benefits to pleading to that offense. (For that reason, it may not be that difficult to vacate a prior 11351/11358-11359/11378 conviction.)

Yes CIMT. Note that the non-federal substance defenses do not appear prevent a CIMT. See 11377, Part 3.

Other removal grounds:

Yes, deportable and inadmissible CS offense, unless a non-federal substance defense applies. See 11377. But best option is to use the defense with a plea to 11377 or 11379/offering, not 11378, or better yet, to plead to a non-drug offense.

Yes, inadmissible for reason to believe trafficking. Because this is a fact-based inquiry that can use evidence from outside the ROC, this ground may apply even to a conviction protected by a non-federal substance defense, or if the conviction has been vacated. If the facts of the offense show offering to give a CS away for free, it is not necessarily reason to believe “trafficking.”

Defense strategies: As with other drug offenses, counsel should try hard to plead to a non-drug offense (or, if D is likely able to complete it, to PC 1000 pretrial diversion); to simple possession if D can survive that; or to PC 372.5 or PC 32 (with a sentence of 364 days or less – but see PC 32 advice on CIMT risks) ; or to a specific non-federal CS, although this may still be a CIMT. See discussion at 11377 and at ILRC, How to Defend Immigrants Charged with Drug Offenses, including New PC 372.5 (Jan 2023).  Also consider alternative pleas such as H&S C 11391, 25189.5, 459, or B&P C 4141 (sale of syringe). If none of these are possible, plead up specifically to “offering to” distribute (or sell), 11351 or 11379, which at least is not an AF in immigration proceedings within the Ninth Circuit; see above.

Refugee and Asylees: Conviction of a trafficking offense like possession for sale is a ‘particularly serious crime,’ extremely bad for asylees, refugees, and applicants for asylum. See 11379 and see § N.17 Immigration Relief Toolkit. 

232
H&S C 11379 H&S C 11352(a) uses same analysis

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

Review the several possible defenses to a CS charge at Advice to 11377, above, before pleading to this charge. If there is no alternative, consider the following.

Divisible. Sections 11352 and 11379 are divisible in two ways: the verb and the substance. 

Regarding the verb, if you cannot avoid this offense, always plead specifically to “offering” to give away (or if needed, to sell or transport). Specify “offering” rather than leaving the record vague, because the statute is divisible in this regard. Offering is not an aggravated felony for any immigration purpose, although only in immigration proceedings arising within the Ninth Circuit.12See U.S. v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc) and see US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir 2017) (en banc) (holding that the California statutes are divisible between the offense and “offering to” commit the offense).

(Meaning, if the person ends up in immigration proceedings outside the Ninth Circuit, offering will be an AF.) Even within the Ninth Circuit, offering is a deportable and inadmissible drug offense; its only value is to avoid an AF.

Regarding the substance, see discussion at 11377, Parts 3 and 6, of the non-federal substance defenses. The fact that 11377-79 and 11350-52 include a few substances that are not on federal schedules gives rise to some defenses against having a CS offense for any immigration purposes. 

Yes AF: Sell, give away, post-1/1/14 transport

Not AF: Pre-1/1/14 transport is not an AF, because the minimum conduct is personal use. This should apply nationally. In the Ninth Circuit only, “offering to” commit one of the offenses is not an AF.

Sale, transport for sale, offering to do these is a CIMT. The BIA held that giving away for free is a CIMT, although immigration counsel can investigate arguments against this. Transport based on pre-1/1/14 conduct should not be a CIMT because the minimum conduct is for personal use. Assume that the non-federal substance defenses (see 11377) do not prevent a CIMT.

Yes, deportable and inadmissible CS, unless a non-federal substance defense applies to your client. See discussion at 11377. See Advice regarding reason to believe trafficking.

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

The “reason to believe trafficking”  inadmissibility ground is a bar to eligibility for almost all relief. An LPR who does not need to be admissible (e.g., who doesn’t leave U.S.) can survive it, but it is very bad for undocumented people, for refugees and asylees, or for LPRs who then travel outside the U.S. See § N.8 Controlled Substance and see § N.17 Immigration Relief Toolkit.

Refugees, asylees. Commercial trafficking (sale, post 1/1/14 transport, or offer to do these) is a particularly serious crime (PSC). Asylees and refugees are very likely to lose their status and be removed based on conviction, unless they have strong equities and the case has these factors: amount was very small, D was peripheral to scheme, no minors involved. Offer to give away is better than offer to sell for this purpose, although it is not safe. Best is to possession or a non-drug offense. The non-federal substance defenses don’t work for this purpose. See “Representing Refugees and Asylees” in § N.17 Immigration Relief Toolkit.

Defenses and alternative pleas:  As with other drug offenses, counsel should try hard to plead to a non-drug offense, and review other possible defense options at 11377. If the defendant has equities such as a pending asylum case, family issues, etc., try to persuade the prosecution. If forced to plead to this offense, do plead specifically to “offering to distribute” to avoid an aggravated felony. Also consider alternative pleas such as H&S C 11391, 25189.5, 459, or B&P C 4141.

Victims of human trafficking or intimate partner violence. If the defendant may be a victim who is working under duress, see discussion at Advice to 11377.

233
H&S C 11379.5

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

Divisible:

Offering: Offering to sell, give away, etc. is not an AF, but only in imm proceedings arising in the Ninth Circuit. See Advice.

Yes AF: Sell, give away, post-1/1/16 transport
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.

H&S C 11379.5

Plead to 11379 rather than 11379.5 in order to use non-federal substance defenses, especially if the defendant is an LPR who is not yet deportable.

Transportation. Minimum conduct for transportation under 11379.5 includes for personal use, for offenses committed until 1/1/16. This is not an AF. As of 1/1/16 the transportation is for sale and is an AF. (Compare to 11357, 11379, which changed to transport for sale as of 1/1/14.)

Consider defenses at 11377: Instead plead to a non-drug offense, to 372.5, etc., if that is possible.
240
H&S C 11390, 11391

Cultivate (11390) or
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.

H&S C 11390, 11391

CS offense: Involves “any spores or mycelium capable of producing mushrooms or other material which contain” e.g., psilocybin. While psilocybin is a federal CS, it appears that spores or mycelium are not on the federal list (or on almost any other state list). If that is so, this is not an AF or a deportable or inadmissible CS conviction.

Trafficking offense. To avoid a particularly serious crime, bad for refugees and asylees, do not plead to any offense relating to sale. Offer to give away is best option, although a possession offense is much better. See 11379 and see Relief Toolkit.

Consider defense at 11377: Instead plead to a non-drug offense, to 372.5, etc., if that is possible. 

250
H&S C 11550

Under the influence of a controlled substance (CS)

Not AF, even with a drug prior.
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. Note that 11550 includes meth, and in 2023 a federal district court held that meth is not a federally defined CS. See discussion of U.S. v. Verdugo at 11377, above.

Firearms. 11550(e) should not be held a deportable firearms offense due to the antique firearms rule. See PC 29800(a). But it may be a bar to DACA. See PC 25400.

H&S C 11550

See Advice for 11377.

Marijuana/hashish: Ninth Cir held that conviction of being under the influence of marijuana or hashish qualifies for 30 grams marijuana benefits, but BIA disagrees. See 11377. It appears that 11550 does not include cannabis, but sometimes it is treated as though it does in immigration proceedings.

A plea to 11550 from on or before 7/14/2011 is NOT eliminated for imm purposes by rehabilitative relief, under Lujan. 11550 does not get the same benefit as possession, possession of paraphernalia, or giving away marijuana.14Nunez-Reyes v Holder, 646 F.3d 684 (9th Cir. 2011) (en banc).

Consider defenses at 11377 before pleading to this offense.

 

260
H&S C 25189.5

Disposal of hazardous waste

Not AF

Should not be CIMT

Not CS, can include variety of hazardous waste

H&S C 25189.5

Possible substitute plea for drug production lab or other offense

280
PC 31

Aid and abet

Yes, AF if underlying offense is.

Yes, CIMT if underlying offense is

Yes, if underlying offense is a removable offense, aiding and abetting is

PC 31

This provides no benefit above the principal offense for immigration purposes. But see PC 32, which can be a good alternative.

290
PC 32

Accessory after the fact

Yes, AF as obstruction of justice if a year or more is imposed.

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

Never a CIMT per Ninth Cir. But because BIA holds it is a CIMT if principal’s offense is a CIMT,15Pen C § 32 as a CIMT. The Ninth Circuit held that Pen C § 32 is categorically not a CIMT (never is one), because it lacks the element of depravity required by the generic definition of moral turpitude. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007)(en banc). In a case arising outside of the Ninth Circuit, however, the Board of Immigration Appeals held that accessory after the fact is divisible: it is a CIMT only if the principal’s offense is one. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (regarding federal accessory, 18 USC § 3).

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).)
the 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 many removal grounds, e.g., a conviction relating to CS, DV, violence, firearms, AFs (other than maybe obstruction outside the Ninth Cir.) etc., because it does not take on the character of the principal’s offense (except perhaps for CIMT purposes). For example, accessory to CS offense or a COV is not itself a CS offense or COV.16Pen C § 32 and other removal grounds. This is where Pen C § 32 is tremendously useful. Accessory and the similar offense misprision of felony are not drug convictions even where the principal offense involves drugs. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (federal accessory after the fact), Matter of Velasco, 16 I&N Dec. 281 (BIA 1977) (federal misprision of felony), following Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977). See also Matter of Carrillo, 16 I&N Dec. 625, 626 (BIA 1978) (conviction of unlawful carrying of firearm during commission of a felony under a former federal statute was not a drug offense even where felony was identified as drug offense). The Ninth Circuit held that accessory after the fact is not a crime of violence under 18 USC § 16 even where the principal offense involved violence. United States v. Innie, 7 F.3d 840 (9th Cir. 1993).

See also 136.1(b)(1).

But get 364 days or less to avoid an AF.

PC 32

AF.  See further discussion at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). For history leading to Pugin and additional resources, see endnote.17Pen § 32 as the AF Obstruction of Justice. The Supreme Court addressed the definition of obstruction of justice in Pugin v. Garland, 22-23 (June 22, 2023). For more in-depth discussion of Pugin, see, e.g., Merle D. Kahn, “Obstruction of Justice and ‘Obstruction-Adjacent’ Offenses” (July 9, 2023) in Top of the Ninth: A Review of Ninth Circuit and BIA Decisions at https://topoftheninth.com/, and the SCOTUS Blog analysis at https://www.scotusblog.com/case-files/cases/pugin-v-garland/. Check for a forthcoming Advisory by the National Immigration Project at https://nipnlg.org/work/resources. 

The rest of this endnote discusses Ninth Circuit and BIA history leading up to the Supreme Court’s decision in Pugin, and what issues still exist. 

Before Pugin, the Ninth Circuit and the BIA set out conflicting generic definitions of obstruction of justice, which led the BIA to find that California 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”). The main issue was whether the generic definition of obstruction requires interference with a pending (already existing) proceeding or investigation. The Ninth Circuit asserted that the definition of obstruction does require this. It found PC § 32 not to be obstruction because it includes, e.g., helping a person avoid an initial arrest before any investigation has started. The BIA found that obstruction does not require an existing proceeding but only a “reasonably foreseeable” one. It held that PC § 32 is obstruction. 

In Pugin, the Supreme Court rejected the Ninth Circuit’s requirement of a “pending” investigation or proceeding, and did not even appear to adopt the BIA’s definition of a “foreseeable” one.  It affirmed the Fourth Circuit’s ruling in the Pugin case that accessory after the fact under Virginia law is obstruction. In a companion case, Supreme Court considered the Ninth Circuit’s obstruction definition as applied to California PC § 136.1(b)(1), witness dissuasion. See Cordero-Garcia v. Garland, 44 F.4th 1181 (9th Cir. 2022). The Supreme Court remanded Cordero-Garcia to the Ninth Circuit to be decided in accord with its decision in Pugin. 

One issue on remand of 136.1(b)(1) to the Ninth Circuit will be whether the adverse definition of obstruction (that does not require a pending investigation or proceeding) applies retroactively 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 has held that its definition in Valenzuela Gallardo does apply retroactively (Matter of Cordero-Garcia, 27 I&N Dec. 652, 657-663 (BIA 2019)), but the Ninth Circuit ultimately will decide that. Defenders and advocates must act conservatively and assume that the non-retroactivity argument will fail; they should attempt to vacate any prior conviction with a sentence of a year or more, including convictions from before September 11, 2018, if they are likely to be held an AF as obstruction under Pugin.

Cordero-Garcia and Pugin presented a more general issue, which was  whether federal courts 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). The Ninth Circuit in Valenzuela Gallardo II noted that there are strong arguments that courts should not defer to the BIA in a dual application context, under Chevron Step Zero. But the Supreme Court did not address the Chevron issue in Pugin. 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.

An offense “relating to obstruction of justice” is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S). 

In Pugin v. Garland, 22-23 (June 22, 2023) the Supreme Court held that accessory after the fact (a Virginia statute) is obstruction of justice. It specifically rejected the Ninth Circuit’s definition that limited obstruction to an offense that interferes with a pending (already existing) investigation or proceeding. The Ninth Circuit had found PC 32 is not obstruction, because the conduct can occur before an investigation has begun. It is highly likely that the Ninth Circuit will find that PC 32 is obstruction. 

The Supreme Court did not provide a clear definition of obstruction. It rejected the Ninth Circuit’s limit, and stated that that ‘corruption’ or intent to interfere with legal proceedings is obstruction. 

Based on the majority’s vague definition, ICE may overcharge offenses as obstruction. Removal defense advocates may contest this for various offenses, but in criminal proceedings we should act conservatively and assume that PC 32, as well as  PC 69, several offenses between PC 92-183 including 136.1, 140, 148, 167;  VC 10851; and perhaps offenses such as PC 4532, VC 2800.2, or even VC 20001 maybe charged as an AF as obstruction – if a sentence of a year or more is imposed. Without that sentence, several of these offenses, including PC 32, are immigration-neutral and can be valuable alternative pleas.

Alternative pleas. If a year or more is needed, consider safer pleas such as PC 236/237, 487, 530.5, 459/460(a) or (b), 591, 594, and probably 207. See also ways to structure sentences to avoid a year or more for immigration purposes, at § N.4 Sentence.

If a client has a prior conviction of one of the above offenses with a year or more imposed, try to vacate the conviction. On remand, the Ninth Circuit will consider whether the adverse Pugin obstruction definition will apply retroactively to convictions from before Sept. 11, 2018. But advocates should assume conservatively that the argument will not prevail, and attempt to vacate risky convictions from before that date.

CIMT: Within the Ninth Circuit PC 32 is not a CIMT.

However, if the client is taken elsewhere, the BIA’s test (that PC 32 is a CIMT if the principals’ offense is) may prevail. So, best practice is to identify a principal’s specific felony that is not a CIMT, such as 136.1(b)(1), 236/237, 459/460, or 594 for a violent offense, or 530.5, 496, 459, or 10851 for a theft or fraud offense. If that is not possible, an inconclusive (vague) ROC that does not ID the principal’s offense might help protect a permanent resident contesting deportability, but will not help anyone applying for relief under Pereida. See discussion of Pereida and an inconclusive ROC at 11377, above. Again, if the person is in immigration proceedings within the Ninth Circuit, the offense automatically is not a CIMT.

SB 54. This is one of a few wobblers that does not destroy SB 54 protections limiting jail cooperation with ICE. See SB 54 advisory at www.ilrc.org/crimes. 

300
PC 69

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

Get 364 days or less on any single count to avoid an AF as obstruction of justice.

Not an AF as a COV: minimum conduct is offensive touching.18PC 69 as an AF and a COV. Note that while PC § 69 is not an AF as a crime of violence, it likely will be charged as an AF under a different category, as obstruction of justice, if a sentence of a year or more is imposed.  See below endnote and see Advice to PC § 32.

Section 69 should not be held a COV under 18 USC § 16(a). See 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). This should not be a COV under Stokeling, because the person is resisting an action by the officer, not trying to overcome the will of the officer.

Not CIMT because minimum conduct is offensive touching.19PC 69 as a CIMT. There is no direct holding, but PC 69 reaches conduct that should be held not to involve moral turpitude. It includes an offensive touching. See Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (finding that the minimum conduct for Pen C § 69 is offensive touching; therefore, it is not a COV under 18 USC 16(a)). It also includes resisting an officer who is trying to prevent you from committing suicide. See United States v. Fowles, 225 F. App’x 713, 714 (9th Cir. 2007), discussed below.

No other removal ground.

PC 69

AF as Obstruction. Obstruction of justice is an AF if a year or more sentence is imposed. INA 101(a)(43)(S). 

Defenders must assume conservatively that PC 69 will be held obstruction under Pugin v. Garland, 22-23, 2023 WL 4110232 (June 22, 2023). There the Supreme Court rejected the Ninth Circuit’s definition of obstruction, which required interference in a pending (already existing) investigation or proceeding. Because PC 69 includes resisting an initial arrest, it did not come within that definition. Now defenders must assume that any PC 69  conviction will be an AF, if a  sentence of a year or more is imposed. See alternative pleas below.

Immigration advocates can investigate arguments that PC 69 is not obstruction under Pugin – for example, because it reaches interfering with officers’ duties that are related to public safety and not to a crime of potential legal proceedings.20PC 69 as obstruction. An offense relating to “obstruction of justice” is an AF if a sentence of a year or more is imposed. INA § 101(a)(43)(S). Section 69(a) is a wobbler offense that punishes a person who commits either of two prongs: “who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty…” Section 69 did not come within the Ninth Circuit’s definition of obstruction set out in Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II). That definition required interference with a pending proceeding or investigation, whereas PC § 69 includes interference in any duty and includes an initial arrest. However, the Supreme Court rejected the “pending investigation or proceeding” definition in Pugin v. Garland, No. 22-23 (June 22, 2023). Defenders must assume conservatively that PC § 69 will be held to be obstruction under Pugin, and should avoid a sentence of a year. Defenders and advocates should try to vacate a prior conviction with that sentence.

Removal defense advocates can explore arguments that PC § 69 is not an AF as obstruction. despite Pugin. One argument is that the PC 69 reaches interference in any action by an officer. The BIA’s definition of  obstruction includes interference in an ongoing or a “reasonably foreseeable” civil or criminal legal proceeding. Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018). While the Supreme Court in Pugin did not explicitly adopt the “foreseeable” test, it is clear that it requires corrupting or interfering with some proceeding. Section 69 includes interference in any lawful duty of the officer, even if there is no likelihood of civil or criminal proceedings. It includes resisting an officer who is trying to protect the person from self-harm. 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). In this case, no corruption, obstruction, or escape from punishment is at stake. For this reason, 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.4th 1411, 1420 (Ct.App.1st Dist. 2010). 

Counsel also can assert that Pugin cannot be applied to convictions from before Sept. 11, 2018, which is the date that the BIA opinion that rejected the requirement of a pending proceeding was published. See Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA Sept. 11, 2018). The BIA later held that its definition can be applied retroactively to convictions from before that date. Matter of Cordero-Garcia, 27 I&N Dec. 652, 657-663 (BIA 2019). However, in Pugin the Supreme Court remanded the Ninth Circuit’s Cordero-Garcia decision, which was the Pugin companion case and the Ninth Circuit will address the retroactivity issue there. Advocates should not rely on that argument winning, but it is another valid point to raise that also may provide time to investigate post-conviction relief.

– For further discussion see ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).

Alternatives. If a year or more is needed on a plea, consider safer alternatives such as PC 236/237, 459/460(a) or (b), 530.5, 594. If a lot of time is required, PC 69 can be the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence.

Try to vacate prior convictions of PC 69 with a year imposed. Advocates will argue that the Pugin definition should not apply to convictions from before Sept. 11, 2018, but we must assume this will not prevail. 

COV / CIMT: As always, although this is not required under the categorical approach, the best practice is to give D extra protection by pleading specifically to offensive touching.

310
PC 92

Bribery of a judge, juror, umpire, referee

Get 364 days or less on a single count if judge, juror; see Advice

Yes CIMT.

No other removal ground.

PC 92

Specific plea to bribery of an umpire or referee arguably is not commercial bribery and should not be an AF even with 1 year; more research may be needed.21Commercial bribery, bribery of a witness, and obstruction of justice are aggravated felonies if a year is imposed, but bribery of a referee or umpire should not be. See 8 USC § 1101(a)(43)(R), (S).  Advocates could investigate whether the statute is indivisible between bribery of a witness and an umpire. 

320
PC 112 (misd), 113 (felony)

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

Obtain 364 days or less to avoid AF charge.
Likely 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.22Pen C §§ 112, 113 as a CIMT. The BIA has found that “impairing or obstructing a function of the Government by deceit, graft, trickery, or dishonest means is a crime involving moral turpitude,” even without an element of fraud. See, e g., Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (false statement to obtain a passport). However, advocates may argue that Pen C §§ 112, 113 does not require intent that the documents be used to make a false statement to government; it includes the intent to conceal immigration status for any purpose. See, e.g., People v. Guzman, H022726, 2003 Cal. App. Unpub. LEXIS 1199 (Feb. 3, 2003) (unpublished) (man used false document to try to get driver’s license to be able to retrieve wife’s towed car). In addition, the Ninth Circuit has required intent to defraud or cause harm for moral turpitude purposes. See, e.g., cases cited for offenses such as Pen C § 530.5. While advocates may assert this untried defense, defenders should not rely upon it succeeding. 

Document or visa fraud. If the documents are visas or other docs intended to obtain imm benefits, including an I-9, conviction could support a civil hearing under 8 USC 1324c to make a finding of deportable document fraud. Might also trigger visa fraud.

PC 112 (misd), 113 (felony)

AF. Avoid a sentence imposed of 1 year or more on any single count, because ICE may charge this as an AF as document fraud, forgery, counterfeiting, or perhaps obstruction of justice. Immigration advocates may have arguments against this, but it is far better to avoid 1 year.23Pen C §§ 112, 113 as an AF if a sentence of a year or more is imposed. This offense might be charged as an aggravated felony as counterfeiting, or under some other category, if a year or more is imposed on a single count. See comments in the Overview of this document, and see Note: Sentences at www.ilrc.org/chart, for discussion of how to accept significant jail or prison time but avoid a one-year sentence for immigration purposes.

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 obstruction of justice.  Conceivably it would be charged as obstruction of justice, under the vague definition set out in Pugin v. Garland, No. 22-23 (June 22, 2023).  See Advice to PC § 32 for further information.

AF as crime of deceit with loss to victim/s exceeding $10,000, assuming there are “victims” to this offense.24AF as fraud and deceit. A crime involving fraud or deceit is an AF if the loss to the victim/s exceeds $10,000. See 8 USC § 1101(a)(43)(M)(ii). Pen C §§ 112, 113 might be held an AF if there is such a loss. However, it is not clear that persons purchasing these objects, who know that the documents are not lawfully valid, can be termed “victims” of the offense.

 

330
PC 114

Use false documents to conceal one’s immigration status

See PC 112, 113, and see Advice. Obtain 364 days or less

See PC 112, 113.

See 112, 113.

PC 114

AF. See 112, 113.

340
PC 115

Knowingly offers false or forged instrument to be registered

Try to get 364 days or less, and/or plead to “false,” not forged, document. See Advice.
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.25Advocates can explore arguments that Pen C § 115 is not a CIMT. It does not require an intent to defraud. See, e g., People v. Geibel (1949) 93 Cal. App. 2d 147, 169 and see CALCRIM 1945. Further, although some courts have stated without discussion that the false fact must be material, that does not appear to be accurate. See People v. Feinberg (1997) 51 Cal. App. 4th 1566, 1579 (“‘The core purpose of Penal Code section 115 is to protect the integrity and reliability of public records.’ This purpose is served by an interpretation that prohibits any knowing falsification of public records. Accordingly, we will not insert into section 115 a requirement of materiality that the Legislature did not see fit to include.”) (citations omitted), and see CALCRIM 1945 and People v. Murphy (2011) 52 Cal. 4th 81, which do not cite materiality as an element. Section 115 extends to a wide range of offenses involving filing any document with any government agency, such as filing a false fishing report. People v. Powers (2004), 117 Cal. App. 4th 291.

See 112, 113.

PC 115

AF with 1 year. Forgery with a sentence of 1 yr or more is an AF. But PC 115 also reaches a “false” instrument (not forged but containing false information) and there is a strong argument that this is not “forgery.”26Conviction of an offense “relating to … forgery” is an aggravated felony if a sentence of a year or more was imposed. 8 USC 1101(a)(43)(R). Section 115 can be violated by filing a “false” instrument, which simply contains false information without any forgery. See People v. Gangemi, 13 Cal. App. 4th 1790 (1993) (Pen C § 115 conviction upheld where the filed government documents contained false information regarding financial assets); Generes v. Justice Court, 106 Cal. App. 3d 678, 682 (1980) (Pen C § 115 conviction upheld “even though [the document] does not bear a forged signature or otherwise meet the technical requirements of a forged instrument.”). If it is not possible to avoid an imposed sentence of a year or more, defenders should at least plead to conduct involving a “false” rather than forged document. At least in the Ninth Circuit, a document does not meet the generic definition of forgery based solely on the fact that it contains false information. The Ninth Circuit stated that “it is clear that an essential element of the generic offense of forgery is the false making or alteration of a document, such that the document is not what it purports to be.” Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 875 (9th Cir. 2008) (holding that conviction for conduct involving a false document under Pen C § 475(c) is not forgery) (emphasis added). The generic definition of forgery does not include conduct “that does not fall within the generic definition of forgery; namely, possession or use of a genuine instrument with intent to defraud but not to forge.” Id. at 876. However, the Third Circuit appeared to find that a false statement in a document could be an aggravated felony with a year’s sentence, by applying an expanded definition of the term “relating to” forgery. See Williams v. Attorney Gen. United States, 880 F.3d 100, 108 (3d Cir. 2018). The Ninth Circuit rejected that argument in Vizcarra, above, but the BIA and other circuits courts of appeals have not weighed in on it. Immigration advocates can consider this defense, but defenders should try to get 364 days or less on each count.

350
PC 118

Perjury

Get 364 days or less on any one count to avoid an AF as perjury.
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.

PC 118

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.27Pen C § 118 as a CIMT. The Ninth Circuit found that Pen C § 118 is divisible between making a false statement under oath before a tribunal and making a false written statement under penalty of perjury (e.g., in a driver’s license application). Rivera v. Lynch, 816 F.3d 1064 (9th Cir 2016). The court found that written perjury is not a CIMT, because it includes “non-case related lying,” does not exclude statements by incompetent defendants, and lacks the solemnity of an oral oath-taking. Defenders should plead specifically to written perjury.

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.28Pen C §118 as an AF. The BIA and the Ninth Circuit have held that Pen C 118 is categorically (always) “perjury” and thus is an AF if a sentence of a year or more is imposed. See Matter of Alvarado, 26 I&N Dec 895 (BIA 2016) and Yim Barr, 972 F.3d 1069 (9th Cir. 2020), deferring to the BIA’s definition. Compare this to the Ninth Circuit’s ruling for Pen C 118 as a CIMT, discussed in Rivera v. Lynch, 816 F.3d 1064 (9th Cir 2016) in above endnote.

If the loss to victim/s exceeds $10k, see instructions at PC 484, 470.

360
PC 135

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.

PC 135

CIMT: Immigration advocates can investigate whether PC 135 should be treated the same as PC 32. The Ninth Circuit has held PC 32 never is a CIMT, but the BIA disagrees. But if avoiding CIMT is a priority, see PC 136.1(b)(1) or even PC 32.

370
PC 136.1 (b)(1)

Nonviolently try to persuade a witness or victim not to file a police report

To securely avoid AF as obstruction, obtain 364 days or less imposed on each count, but see Advice.

Not an AF as a COV.

Probably not a CIMT. Ninth Cir held it is overbroad as a CIMT. BIA held it is never a CIMT in at least one unpublished decision, but not in precedent opinion.29PC 136.1(b)(1) as a CIMT. The Ninth Circuit held that the minimum conduct to commit § 136.1(a), “knowingly and maliciously” preventing or dissuading a witness or victim from participating in a trial, proceeding, or inquiry, is not a CIMT. Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017), citing cases like People v. Wahidi (2013) 222 Cal App 4th 802.

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 the BIA. 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, violence, DV, fraud, firearms, etc. because it does not take on those elements. See also PC 32.

Because a felony is a strike with high exposure, it can substitute for more serious charges. But get 364 days or less, either with felony probation or as a consecutive prison sentence of eight months.

PC 136.1 (b)(1)

AF: Defenders must assume that PC 136.1(b)(1) is an AF as obstruction of justice, if a sentence of a year or more is imposed. The Ninth Circuit will address this issue on remand from the Supreme Court. See discussion of Pugin and Cordero-Garcia, below.

If a year or more sentence is needed, consider  safer pleas such as PC 236/237, 459/460(a) or (b), 487, 591, 594, possession of a weapon, or probably 207.

If a lot of time and a strike is required, consider making 136.1(b)(1) the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence.

Regarding the cases, the Ninth Circuit held that 136.1(b)(1) does not meet the definition of obstruction of justice because it does not require interference with a pending (already existing) investigation or proceeding. Cordero-Garcia v. Garland, 44 F.4th 1181 (9th Cir. 2022). The Supreme Court accepted cert on the issue of the definition of obstruction, considering Cordero-Garcia and a Fourth Circuit case, Pugin v. Garland, that had upheld a finding that Virginia accessory after the fact is obstruction. In Pugin v. Garland, 22-23, 2023 WL 4110232 (June 22, 2023), the Court affirmed that the accessory after the fact offense is obstruction, and specifically rejected the Ninth Circuit’s requirement that obstruction involve interference with a pending proceeding. It remanded Cordero-Garcia to the Ninth Circuit for decision on 136.1(b)(1) as obstruction, in light of its ruling in Pugin. 

On remand experts will argue that even in light of Pugin, 136.1(b)(1) should not be held obstruction. ILRC will publish briefs when available.30PC § 136.1(b)(1) as AF as obstruction. As stated in the Chart text, at this writing this issue is on remand to the Ninth Circuit in Cordero-Garcia, and defenders must assume conservatively that it will be found to be obstruction. Removal defense advocates arguing against that can point out that PC § 136.1(b)(1) lacks 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), a more serious offense, is not a CIMT). Compare this to the federal definition of persuading a witness not to provide evidence that a crime occurred, 18 USC § 1512. Section 1512 requires “knowing use of intimidation, physical force, threats, corrupt persuasion, or misleading conduct” and intentional harassment. It is true that the Pugin majority did not require a match to elements of federal obstruction offenses. But it also true that the Pugin majority did not provide a cogent definition of obstruction, and in her concurrence Justice Jackson argued that the relevant federal offenses should be the generic definition of obstruction.

They also will argue that the Pugin definition does not apply to convictions from before Sept. 11, 2018. Removal defense advocates will assert these arguments, but criminal defense counsel must assume conservatively that they will not prevail and avoid a conviction with a year or more.

See further discussion of Pugin at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).

380
PC 140

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

Get 364 days or less to avoid an AF as obstruction of justice.

See Advice if that was not done or is not possible. Probably not a COV 

While arguably it is not a CIMT, there is no precedent. If it is important to avoid a CIMT, consider a different plea. But 140 can be violated by an offensive touching or any vandalism and lacks intent to influence any proceeding.
See endnote at Advice.

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.

PC 140

AF as Obstruction. Assume that this is an AF as obstruction of justice if a year or more is imposed, under the Supreme Court’s definition in Pugin v. Garland, No. 22-23 (June 22, 2023). For further discussion of Pugin see Advice to PC 32, above, and see ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).

If a year or more sentence is required, consider offenses such as 236/237, 487, 459/460(a) or (b), 591, 594, or possession of a weapon. 

For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence. 

For possible arguments in removal defense that PC 140 is not an AF as obstruction or a COV, and is not a CIMT, see endnote.31Pen C § 140 as obstruction of justice. See Advice to Pen C § 32 for further discussion of obstruction of justice as an aggravated felony, 8 USC § 1101(a)(43)(S). Under the Supreme Court’s vague definition in Pugin, this is extremely likely to be held to be obstruction. 

Advocates can investigate non-frivolous arguments. Section 140 appears to match a federal offense described in 18 USC §§ 1501-1521. 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.  Still, 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).

Pen 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.4th 278), and no requirement that the threat be conveyed to the victim in any manner (People v. McLaughlin (1996) 46 Cal. App.4th 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  a CIMT: Section 140 should not be held a CIMT, but use caution as there is no precedent. 

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 and 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 not 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 COV. A COV is an AF if 1 yr or more is imposed. Taking, or threatening to take, property is not a COV. In addition, it appears that threat/use of force under 140 includes an offensive touching, and thus also is not a COV.

390
PC 148(a)-(d)

Resisting officer or EMT in discharge of duty (a)

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

Obtain 364 days or less on any single count of 148(b)-(d) to avoid possible AF as obstruction of justice.

PC148(a) is a misdemeanor with maximum 364 days as of January 1, 2015, so it cannot be an AF. But pre-2015 148(a) misd convictions with a year imposed might be an AF.

See Advice

See citations on CIMT.32Pen C 148 as CIMT. PC 148(a) should not be held a CIMT because it can be committed nonviolently and as a principled action, for example by using passive resistance in support of a nonviolent political demonstration. In re Bacon (1966) 240 Cal. App. 2d 34, 53, (“We hold, therefore, that a person who goes limp and thereby requires the arresting officer to drag or bodily lift and carry him in order to effect his arrest” violates PC § 148.), disapproved of on other grounds by In re Brown (1973) 9 Cal. 3d 612. 

Courts have held that an element of all sections of PC 148 is that the defendant “must know, or through the exercise of reasonable care should have known, that the person attempting to make the arrest is an officer.” See People v. Lopez (1986) 188 Cal. App. 3d 592, 599-600, cited in CALCRIM 2656. This is a negligence standard, and negligence generally is held not to be a CIMT. While the statute does not appear to be divisible between know or should have known, best practice is to plead specifically to “should have known.” Note that “should have known” is not in the text of the statute, but was clarified in case law such as Lopez.

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

Also, an element of 148(a)-(d) is that D knew or reasonably should have known the other was an officer. Arguably this negligence is not a CIMT. Try to plead specifically to should have known.

Assume conservatively that (c) and (d) are deportable firearms offenses, as courts might hold that the police on duty are not likely to be holding antique weapons, in case the antique firearm exception is held not to apply to weapons taken from police on duty.33Pen C § 148 uses language from the definition of firearm found at § 16250(a) (see CALCRIM 2653) which includes antique firearms. But the government may argue that it is impossible that officers engaged in their duties would be using antique firearms.

PC 148(a)-(d). 

AF. Obstruction of justice is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S). Counsel must assume that PC 148 is an AF as obstruction if a year or more is imposed, because it involves some intent to interfere in a legal investigation or proceeding. 

Pen C 148 was not obstruction under the Ninth Circuit’s definition set out in Valenzuela Gallardo, which required interference with a pending (already existing) proceeding or investigation. However, the Supreme Court rejected that definition in Pugin v. Garland, No. 22-23 (June 22, 2023). See further discussion of Pugin in Advice to PC 32, above and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).

If a year or more sentence is required, consider safer offenses such as 236/237, 487, 459/460(a) or (b), 591, 594, or possession of a weapon. Also, PC 69 appears to have a stronger argument that it is not obstruction than 148 does and it could be an alternative – although not as safe as the preceding options.

For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence.

400
PC 148.5

Knowingly making false report of crime

Not AF as obstruction because 6-month max

See Advice and see 148.9.

No other removal ground.

PC 148.5

This does not appear to fit the definition of CIMT34 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.

410
PC 148.9

False ID to peace officer

Not AF because 6-month max 

Ninth Circuit held not a CIMT35Blanco v. Mukasey, 518 F.3d 714 (9th Cir. 2008).

No other removal ground.

PC 148.9

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

420
PC 166 (a)(1)–(4)

Contempt of court, including violation of any court order

Not a potential AF because 6-month max.

Should not be CIMT.
(a)(1)-(3) has no intent. 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.

PC 166

See endnote for further discussion and citations.36A 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.

430
PC 166(c)

Violation of various protective or stay-away orders

Not a potential AF because 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.

PC 166(c)

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.

440
PC 182

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.

PC 182

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).378 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.

450
PC 186.22(a)

Participates in gang, promotes felonious conduct

Not AF

This should not be a CIMT per se, although an immigration judge with an anti-gang stance might try to so hold. See good Ninth Circuit law on 186.22 (b), (d), below.

See Advice re possible security grounds.
Otherwise this is not a per se basis for deportability or inadmissibility, although Congress might add it in the future.

PC 186.22(a)

This is a bad plea because gang-related activity is an extremely negative factor in every discretionary decision, including release on bond. Whenever possible, avoid a plea to 186.22 and take the extra time in some other manner.

While there is no “gang” removal ground per se, gang membership sometimes is used to find inadmissibility under the “security and related grounds,” which are not waivable. 8 USC 1182(a)(3)(A) (ii).

Serves as a bar to DACA; see PC 25400.

460
PC 186.22 (b), (d)

Gang benefit enhancement

AF if underlying conduct is AF (e.g., a COV with 1-yr imposed)

Does not change a non-CIMT into a CIMT under current Ninth Cir law; see Advice.

See discussion at 186.22(a).

PC 186.22 (b), (d)

CIMT: Ninth Circuit held that this enhancement does not change a non-CIMT (possess weapon) into a CIMT. It declined to follow BIA precedent finding that 186.22(d) transforms PC 594 into a CIMT.38See Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015) (9th Cir. 2015) (gang enhancement under § 186.22(b) does not turn a non-CIMT (possession of a billy club) into a CIMT), declining to follow in this circuit Matter of E.E. Hernandez, 26 I&N Dec. 397 (BIA 2015) (vandalism with enhancement, Pen C §§ 594(a), 186.22(d), is a CIMT). BIA will apply its own rule outside the Ninth Cir.

See Advice for 186.22(a) regarding serious risks of gang provisions in general.

470
PC 187

Murder (first or second degree)

Divisible as the AF “murder” because California includes murder of fetus; see Advice.

Yes CIMT

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

PC 187

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.39Gomez Fernandez v. Barr, 969 F.3d 1077 (9th Cir. 2020).

480
PC 192(a)

Voluntary manslaughter

Not an AF as a COV because it involves recklessness.

But attempt to commit 192(a) is a COV, and an AF if a year is imposed.   See Advice.

Yes CIMT,40Ortiz v. Garland, 25 F.4th 1223 (9th Cir. 2022) (192(a) is a CIMT).as is attempt.

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).

PC 192(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. The Supreme Court affirmed that recklessness is not a COV in Borden v. United States.41Quijada-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.) In 2021 the Supreme Court held that a COV also does not include recklessness. Borden v. United States, 141 S.Ct. 1817 (2021). See further discussion at PC 207(a).

The BIA found that attempt to commit voluntary manslaughter, PC 664/192(a), is a COV because that requires intentional conduct rather than recklessness.42Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018).

490
PC 192(b), (c)(1), (2)

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.43While there is no case on point, Pen C § 192(b) should not be held a CIMT. In Matter of Tavididishvili, 27 I&N Dec. 142 (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).

PC 192(b), (c)(1), (2)

These offenses are not COVs because they have a minimum conduct amounting to negligence.44 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). Borden, discussed in 192(a), held that recklessness is not a COV, and 192(b), (c) requires only gross negligence. Best practice is a specific plea to negligence.

500
PC 203

Mayhem

Yes, AF as COV45Matter 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).

PC 203

To avoid a COV, and therefore a deportable crime of DV, see PC 69, 136.1(b), 148, 236/237, 243(a), (d), (e), 243.4, 459, 591, 594. Some of these offenses can take a sentence of a year or more. See PC 207 for more on crimes of violence. See § N.4 Sentence.

510
PC 207(a), (d)

Kidnapping

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

See Note: Sentence.

Ninth Cir held that 207(a) is not a CIMT.46The Ninth Circuit held that a conviction for kidnapping under Pen C § 207(a) is not categorically a crime involving moral turpitude because it can be committed with good or innocent intent when the defendant uses verbal orders to move a person, who obeys for fear of harm or injury if they don’t comply. See Castrijon-Garcia v. Holder, 704 F.3d 1205, 1217-18 (9th Cir. 2013),

overruled on other grounds by Ceron v. Holder, 747 F.3d 773, 782 n.2 (9th Cir. 2014) (en banc). This holding was reaffirmed in Syed v. Barr, 969 F.3d 1012, 1018 (9th Cir. 2020) (holding that communicating with a minor under PC 288.3 is divisible as a CIMT because it includes 207(a), which is not a CIMT, as an intended offense, citing Castrijon-Garcia). Section 207(e) also includes very minor conduct.

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, 136.1(b)(1) (avoid a year on each), felony 236/237 (although no precedent), 243(e), 459/460(a) or (b), 487, 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.

PC 207(a), (d)

COV. For citations and further discussion of Dimaya, Stokeling, Borden, and the definition of COV in general, see this endnote.47Definition of a crime of violence. For immigration purposes, a crime of violence (COV) is currently defined at 18 USC § 16(a), which provides: “The term ‘crime of violence’ means—(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another.” “Force” has been interpreted to mean violent, aggressive, physical force. It has been held to exclude offenses that can be violated by an offensive touching—for example, Pen C § 243(e), negligent conduct (e.g., DUI or DUI with injury, absent a special intent requirement), and recklessness. But in Stokeling, discussed below, the Court held that if overcoming the resistance of the victim is an element of the offense, as in some robbery statutes, even a minor use of force can qualify.

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 (2022) at www.ilrc.org/crimes.

Stokeling and overcoming the victim’s will. The Supreme Court revisited the definition of a crime of violence 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. Stokeling at 553. The BIA reaffirmed this distinction, holding that a Louisiana spousal battery statute similar to Pen C § 243(e) does not come within Stokeling and is not a crime of violence. Matter of Dang, 28 I&N Dec. 541, 548-49 (BIA 2022).

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: Reckless conduct is not a crime of violence. In 2021 the Supreme Court held that an offense with an element of recklessness is not a crime of violence, under a definition identical to 18 USC § 16(a). Borden v. United States, 141 S.Ct. 1817 (2021). This was the long-held view of many circuit courts of appeals. Earlier the Court had held that recklessness could be an element of a different federal definition of a crime of domestic violence (U.S. v. Castleman, 572 U.S. 157 (2014)), but the Court specifically stated that the ruling did not apply to18 USC § 16. See discussion in Matter of Dang, 28 I&N Dec. at 547-548 (holding that Castleman does not apply to 18 USC § 16(a)).

For citations and further discussion of PC 207 as a COV, see this endnote.48Pen 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, not including de minimis 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 de minimis force to “overcome the will of the victim,” because the nature of the 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 does not change the COV analysis of assault and battery, so the analysis of 243 and similar offenses should not change.)

The Supreme Court held that reckless conduct is not a COV, in Borden v. United States, 141 S.Ct. 1817 (2021). Thus, PC 246, 192(a), or VC 23104, 23105, etc. should not be an AF even if a year or more is imposed.

If one year or more on a single count can’t be avoided, the safest 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.

520
PC 211

Robbery by means of force or fear

Get 364 or less to avoid AF as theft and perhaps as a COV.49Robbery under Pen C § 211 has been held an aggravated felony as theft if a sentence of a year or more is imposed. Matter of Delgado, 27 I&N Dec. 100 (BIA 2017); United States v. Martinez-Hernandez, 912 F.3d 1207 (9th Cir. 2019), regarding theft under 8 USC 1101(a)(43)(G).

Pen C § 211 also might be charged as an AF as a COV, under 8 USC 1101(a)(43)(F). This could be contested – but since § 211 already is an aggravated felony as theft if a year is imposed, winning on the COV issue would not avoid an aggravated felony. The Ninth Circuit 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. U.S. v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) (conviction of robbery upheld where thief accidentally hit the owner while driving the car away). Later the Supreme Court held that a COV does not include reckless conduct. Borden v. United States, 141 S.Ct. 1817 (2021).  In a different case, however, the Supreme Court found that if an offense such as robbery requires even de minimus force to “overcome the resistance of the victim,” it is a crime of violence. Stokeling v. U.S., 139 S.Ct. 544 (2019). See discussion at Pen C § 207, above.
See Advice.

Defenders must assume it is a CIMT.

Imm advocates can consider arguments that it is not a CIMT.50Immigration 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 robbery convictions from before Nov. 16, 2016 should not be held CIMTs as theft because the term “intent to deprive permanently” actually includes mere substantial erosion of property rights. See discussion of Silva v. Barr at PC 484, below. As always, while litigating this untried argument, advocates should investigate other defense strategies including the possibility of post-conviction relief.

If PC 211 is held to be a COV (see aggravated felony column), then it would be a deportable crime of DV if V and D share a protected relationship. Plead to a non-COV; see advice.

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

PC 211

To avoid an AF, avoid a one-year sentence imposed. Consider plea to 487, 459/460 (can take more than a year), felony 236/237 (should be able to take more than a year), and/or, e.g., 136.1(b)(1), 243(a), (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). This should permit prison, avoid an AF, and the only CIMT is the 487.

530
PC 215

Carjacking

Get 364 or less on each count to avoid AF as COV. See Advice.

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

Arguably this is not a COV for purposes of the DV deportation ground (because that deportation ground does not include crimes against property). Still, try hard to avoid this if V and D share a domestic relationship. See Advice. 

PC 215

See citations and further discussion of PC 215 as a COV for purposes of the aggravated felony definition, and the crime of domestic violence definition, here.51PC 215 as an AF as theft. Assume that PC 215 is an AF as theft if a sentence of a year or more is imposed. 

PC 215 as an AF as a COV. The BIA found that PC 215 is a crime of violence under Stokeling. Matter of A. Valenzuela, 28 I&N Dec. 418 (BIA 2021). Advocates could contest this, while at the same time exploring post-conviction relief. DHS might assert that in U.S. v. Baldon, 956 F.3d 1115, 1121 (9th Cir. 2020), the Ninth Circuit effectively held that PC 215 is a COV under 18 USC § 16(a)  —  or in any event, will assert that that is the correct analysis. Their approach is very likely to win, but advocates can explore arguments against it, for example that the Baldon statements are dicta or should be reviewed en banc. As always, at the same time as pursuing such arguments advocates should investigate other defense strategies, including the possibility of post-conviction relief.

In sum: In 2018 the Ninth Circuit held that PC 215 is not a COV under 18 USC § 16(a), because 215 can be committed by using de minimus force. Solorio-Ruiz v. Sessions 881 F.3d 733, 737 (9th Cir. 2018). In 2019, the Supreme Court held that even de minimus force can be a COV, if the offense requires use of that force to overcome the resistance of the victim. Stokeling v. U.S., 139 S.Ct. 544 (2019). In 2020, the Ninth Circuit in U.S. v. Baldon, supra, considered whether Stokeling required a finding that PC 215 actually is a COV because it requires overcoming resistance of the victim. Baldon concerned a definition of COV found at U.S. Sentencing Guideline 4B1.2(a)(1), which is an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another ….” That language tracks the definition used for immigration purposes, at 18 USC 16(a), except that 16(a) includes use of force against person or property. Baldon’s actual ruling looks good: it holds that PC 215 is not a COV under USSG 4B1.2(a)(1). However, it held that only because of the person versus property issue: the USSG section requires violence against a person, while PC 215 is overbroad and indivisible in that it includes violence against person or property. In the discussion in Baldon, the Ninth Circuit stated that PC 215 does meet the definition of “force” set out in Stokeling, and thus that Stokeling had overruled Solorio-Ruiz. 

PC 215 as a crime of DV. Even if PC 215 is committed against a victim who has a domestic relationship with the defendant, a conviction should not be held a deportable “crime of domestic violence” under INA 237(a)(2)(E)(i).  Advocates assert that under the plain language of the deportation ground, a crime of DV is a COV that is committed against a person, not against property. (INA 237(a)(2)(A)(i) provides in part: “the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of title 18) against a person …” Arguably, just as Baldon held that PC 215 does not fit the full definition of USSG 4B1.2(a)(1), it should hold that it cannot fit the definition of a deportable “crime of domestic violence.”

But note that it also is likely an AF as theft if a year is imposed.

To avoid a one-year sentence, see § N.4 Sentence.

 

540
PC 220

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).

PC 220

Bad plea. Even without 1 year, assault with intent to rape might be treated as attempted rape, an AF regardless of sentence.

If 1 yr or more is required, see 459/460(a) or (b) or 236/237; if that is not possible, see 243.4 or 207. If a strike is needed, one can plead to 136.1(b)(1) consecutive (with 8 months imposed) and avoid an AF.

550
PC 236, 237(a): Misdemeanor

False imprisonment (misd)

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

Not a CIMT52Saavedra-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).

PC 236, 237(a)

This is a very good substitute plea to avoid crime of violence in DV cases

Adam Walsh Act. If V is a minor, this may trigger Adam Walsh Act. See discussion at felony 236/237, above.

560
PC 241(a)

Assault

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

Not CIMT53See, e.g., Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989). but see Advice regarding ROC

See 243(a)

PC 241(a)

Good immigration plea. (Although due to extensive case law on battery, battery might be better because imm authorities are more familiar with it.) See 243(a) Advice re ROC.

580
PC 243(a)

Battery, Simple

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

Not CIMT, but see Advice regarding ROC

Not a COV so not a deportable DV offense but see Advice.

To ensure not wrongly charged as a crime of child abuse, keep a minor V’s age out of the ROC. Under the categorical approach, no age-neutral offense can correctly be held child abuse even if the minor age appears in the ROC,54Deportable crime of child abuse. Conviction of a crime of child abuse, child neglect, or child abandonment is a ground of deportability under 8 USC § 1227(a)(2)(E)(i). The BIA interprets abuse, neglect, and abandonment as one category, which we will refer to as a “crime of child abuse.” To be deportable, the person must have been convicted after admission to the United States and after September 30, 1996. For further discussion of crimes of child abuse see ILRC, 2022 Case Update: Domestic Violence Deportation Ground (March 2022), https://www.ilrc.org/resources/2022-case-update-domestic-violence-deportation-ground. 

Some, but not all, offenses with minor age as an element are held to be deportable crimes of child abuse. 

Child endangerment. Most states have child endangerment statutes that prohibit negligently placing or leaving children in a situation where they are or could be harmed. The BIA has taken a “state by state” approach to analyzing each state’s child endangerment statute, depending on the BIA’s evaluation of the level of harm and degree of risk involved. This has made it difficult to predict whether an endangerment statute is a crime of child abuse. 

In California, there finally is a clear answer (unless the issue goes to the Supreme Court). In a fractured en banc decision, the Ninth Circuit held that PC § 273a(a), child endangerment punishable as a wobbler, is a deportable crime of child abuse. Diaz-Rodriguez v. Garland, 55 F.4th 697 (9th Cir. 2022) (en banc). The BIA has stated that § 273a(b), child endangerment with a risk of less harm, a misdemeanor, is not a crime of child abuse. Matter of Mendoza Osorio, 26 I&N Dec. 703, 711 (BIA 2016). Therefore, 273a(b) is a relatively safe plea, while § 273a(a) is not.

As an alternative to a 273a(a) charge, consider 273a(b) and/or another offense, e.g., felony or misdemeanor 459, 594, if necessary DUI.. 

Consensual sex with a minor. ICE may charge that PC § 261.5(c) (intercourse with a minor under age 18 and at least three years younger than the defendant) is a crime of child abuse, by asserting that the BIA in Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021) held that intercourse with a minor under age 18 is categorically child abuse. While it is possible that the BIA en banc, the Attorney General, or the Ninth Circuit will either reverse Aguilar-Barajas or hold that it does not apply to an offense like 261.5(c), defenders still should avoid this plea if it is important to avoid a deportable offense. Advocates in removal proceedings can argue that (1) Aguilar-Barajas does not apply to PC 261.5(c), and/or (2) it was wrongly decided. See arguments that it was wrongly decided in the dissent to Aguilar-Barajas. See further discussion at PC 261.5(c) and at ILRC, . As always with untested arguments, advocates at the same time should investigate the possibility of post-conviction relief. Assume that 261.5(d) is a deportable crime of child abuse, as well as an aggravated felony.

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), or any other offense that does not have age of the victim as an element—never can be a deportable crime of child abuse. The problem is that some immigration judges or officers might not understand this. For one thing, an older BIA decision incorrectly held that an age-neutral offense can be a crime of child abuse if the record of conviction conclusively shows that the victim was under age 18.  See Matter of Velazquez-Herrera, discussed below. Immigration advocates should be prepared to explain the law, and criminal defenders should do their best to avoid the whole issue by pleading to an age-neutral offense and, if possible, 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, 896 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, 579 U.S. 500 (2016) and Matter of Chairez, 27 I&N Dec. 21 (BIA 2017). 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, 2022 Case Update: Domestic Violence Deportation Ground, supra.
but a sanitized ROC clean will protect D against error.

PC 243(a)

Good immigration plea. Because minimum conduct for 241(a), 243(a) is offensive touching and the statutes are not divisible, no conviction is a COV or CIMT for any purpose.55 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 ILRC, How to Use the Categorical Approach Now (2021) 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.) See also Matter of Dang, 28 I&N Dec. 541 (BIA 2022), reaffirming that a battery statute (in this case, spousal battery) that reaches offensive touching is not a crime of violence.
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.

590
PC 243(b), (c)

Battery on a peace officer, fireman etc.

To avoid AF as COV get 364 days or less on each count of 243(c). See Advice and see § N.4 Sentence.

243(b) should not be a COV.

b) does not involve injury, not a CIMT.
(c) should not be held a CIMT,56A 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.

PC 243

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).57Considering a federal sentencing provision that is identical to 8 USC § 16(a), the Ninth Circuit held that that because Pen C § 243(c)(2), battery with injury on a police officer, involves a battery that results in an injury requiring medical attention, it must require force sufficient to be a crime of violence. U.S. v. Colon-Arreola, 753 F.3d 841, 845 (9th Cir. 2014). However, the court did not acknowledge or discuss the fact that the minimum conduct to commit the offense is a mere harmful or offensive touching that causes injury, even if injury was neither likely nor intended to occur. CALCRIM 945. Colon-Arreola relied on U.S. v. Laurico-Yeno, 590 F.3d 818 (9th Cir. Cal. 2010), which held that § 273.5 is a COV because it requires the direct application of force sufficient to cause injury. Id. at 845. However, Laurico-Yeno specifically noted that Pen C § 273.5 “does not penalize minimal, non-violent touchings.” Id. at 822. Colon-Arreola did not consider People v. Hayes, 142 Cal. App. 4th 175, 180 (Cal. App. 2d Dist. 2006), discussed in endnote above, or the California cases that establish that § 243(d) (which appears to have the same force requirement as § 243(c)(2)) does penalize mere offensive touching. See § 243(d). However, in U.S. v Perez, 932 F.3d 782 (9th Cir. 2019), the Ninth Circuit relied on Colon-Arreola to make the same mistake with Pen C 243(d). See endnotes to § 243(d) and see Practice Advisory on U.S. v. Perez and § 243(d) and www.ilrc.org/crimes.

600
PC 243(d)

Battery with serious bodily injury

To avoid AF as COV get 364 days or less on each count. See § N.4 Sentence.
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.58 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).

PC 243

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.59 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.

610
PC 243(e)(1)

Battery against spouse

Not a COV but see Advice re ROC.

Not a CIMT, but see Advice re ROC

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

PC 243

Excellent immigration plea: extensive case law holds that because minimum conduct is an offensive touching, it is never a COV or CIMT.60Section 243(e), battery against a spouse, is not a COV. It uses the same definition of battery as § 243(a), which is not a COV; see endnote on § 243(a), above. Multiple cases have found that Pen C § 243(e) can be committed by an offensive touching, which is neither a COV nor a CIMT. See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006). While Matter of Sanudo found that § 243(e) was divisible depending upon the level of violence shown in the record of conviction (ibid.), in fact the statute is not divisible under the standard set out by the Supreme Court in Mathis and Descamps, and must be evaluated solely based on the minimum conduct ever prosecuted. See, e.g., discussion in U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (after Descamps, supra, the resisting arrest statute is no longer divisible because it is not phrased in the alternative; if the minimum conduct is not a crime of violence, no conviction of the offense is a crime of violence). See generally Matter of Dang, 28 I&N Dec. 541 (BIA 2022) (a spousal battery offense that reaches an offensive touching is categorically not a crime of violence under 18 USC § 16(a), including under Stokeling). Therefore, no conviction of § 243(e) is a COV or CIMT, for purposes of deportability, inadmissibility, or eligibility for relief. See more on the categorical approach. See also 236.

Because this is not a COV, D can accept a stay-away order or similar probation conditions without 243(e) becoming a deportable DV offense. But if in the future a court finds D violates any DV stay-away order, this will make D deportable; see Advice at 273.6.

Just in case imm authorities wrongly consult the ROC instead of using the minimum conduct test, best practice is to keep violence out of ROC and/or plead to offensive touching, when that is possible. But this is not legally necessary to prevent a COV or CIMT.

This has been treated as a significant misd for DACA. See PC 25400.

620
PC 243.4(a) and (e)

Sexual battery

Try very hard to get 364 or less on each count in order to surely avoid an AF, but arguably this is not a COV. See Advice.

CIMT, although imm advocates may try to argue against this.61Pen C. § 243.4 has been held a CIMT. Gonzalez Cervantes v. Holder, 709 F.3d 1265 (9th Cir. 2013). In his dissent, Judge Tashima noted that 243.4(e) has been expanded to include cases in which the intent was to insult, and should be held to reach non-turpitudinous conduct, citing In re Shannon T., 50 Cal. Rptr. 3d 564 (Ct. App. 2006), In re Carlos C., 2012 WL 925029 (Cal. Ct. App. 2012).

This might be (wrongly) charged as a COV under Stokeling, so if possible get a different plea (e.g., 236.1(b)(1) or 136.1(b)(1), with less than a year, 459, 594) if the V and D share a protected relationship, in order to avoid a charge of a deportable crime of DV. Note that 243(d) has been held to be a COV. See Advice for alternate pleas and further discussion.

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

Having to register as a sex offender is not itself a removal ground. However, a state conviction for failure to register could lead to deportability; see PC 290.

PC 243.4(a) and (e)

Good substitute plea to avoid the AFs of sexual abuse of a minor or rape, or deportable child abuse. See also PC 136.1(b)(1), 236/237(a), 243(a), (e), 261.5(c), 289(e), 273a(b).

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.62 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.

630
PC 243.9(a)

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

Not a potential AF: 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

PC 243.9(a)

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

640
PC 245(a)(1)-(4) (Jan 1, 2012)

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.63See, 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.64The Ninth Circuit en banc reversed past precedent and remanded to the BIA to decide in the first instance whether § 245(a)(1) is a crime involving moral turpitude, in light of changes in state and federal law. Ceron v. Holder, 747 F.3d 773 (9th Cir 2014) (en banc). The BIA reaffirmed its opinion that all subsections of § 245(a) are CIMTs. Matter of Wu, 27 I&N Dec. 8 (BIA 2017). Subsequently the court deferred to the BIA and held that essentially all of § 245(a) is a CIMT, when it deferred to the BIA’s holding that a previous version of 245(a)(1), which had included what now is in 245(a)(1)-(4), was categorical a CIMT. Safaryan v. Barr, 975 F.3d 976 (9th Cir. 2020) (defers to BIA’s holding that former Pen C § 245(a)(1) which prohibited “assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury” is categorically a CIMT); see also Matter of Aguilar-Mendez, 28 I&N Dec. 262 (BIA 2021) (Pen C § 245(a)(4), assault with force likely to produce great bodily injury, is categorically a CIMT).

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 for (a)(2) is a deportable firearms offense. But (a)(3) is specifically for machineguns and assault weapons and thus has no antique firearm defense. See PC 246.

To avoid any error, a safer plea is to 245(a)(1) or keep ROC clear of evidence that offense was (a)(2) or esp.(3). 

PC 245

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.65Deportable 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 (2019) 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.

650
PC 246

Willfully discharge firearm at inhabited building, etc.

Recklessness is not a COV, so PC 246 is not an AF even if a year or more is imposed. Still, best practice always is to try to get 364 days or less. See Advice.

Yes, assume CIMT.66See Matter of Muceros, (BIA 2000), Indexed Decision, supra.

Not a deportable firearms offense; see Advice.
Because it is not a COV, it cannot be held a crime of DV

PC 246

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.67Conviction of an offense involving a “firearm” as defined under federal law can trigger deportability under the firearms ground. 8 USC § 1227(a)(2)(C). In general, if the federal definition of firearm is met, some state firearms offenses are aggravated felonies, including trafficking in firearms, and some state analogues to federal firearm offenses, such as being a felon in possession, also are. 8 USC § 1101(a)(43)(C). However, the federal definition of firearm specifically excludes an antique firearm, defined as a firearm made in 1898 or earlier plus certain replicas. 18 USC § 921(a)(3), (16). Under the categorical approach, conviction of a California firearms offense does not come within the firearms deportation ground, and is not a firearms aggravated felony, if antique firearms ever have been prosecuted under that statute—even if a non-antique firearm was used in the defendant’s own case. U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). Significantly, the Aguilera-Rios rule applies to any conviction under any California statute that uses the definition of firearm at § 16520(a), formerly § 120001(b). Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (“We hold that Aguilera-Rios applies to any California statute based on the definition of ‘firearm’ formerly appearing at § 120001(b).” Note that in 2012, the definition of firearms at § 12001(b) was moved to § 16520(a), with no change in meaning. PC 246 uses that definition of firearm.

Recklessness and COV. Courts of appeals have long held that a crime of violence requires more than reckless intent; thus the Ninth Cir held that 246 is not a COV. The Supreme Court affirmed that recklessness is not a COV in Borden v. United States.68In 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. However, the Supreme Court held that reckless conduct is not included in the definition of a COV in the ACCA, which identical to the immigration definition of COV at 18 USC § 16(a). Borden v. United States 141 S.Ct. 1817 (2021). Thus PC 246 is not a COV. See further discussion of the COV definition at the endnote to Pen C § 207, above. Therefore, while 364 days always is preferable, this is not a COV or an aggravated felony if 1 year or more is imposed, or 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 as a firearms offense, but 1203.4 might help; see note at PC 25400.

660
PC 246.3 (a), (b)

Willfully discharge firearm or BB device with gross negligence

Not an AF as COV, but best practice always is to get 364 days or less on any single count if possible.

Should not be CIMT due to gross negligence but might be so charged

Not deportable firearms offense; see PC 246. For further safety, plead to BB device.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).

PC 246.3

The Ninth Circuit held that 246.3, committed by gross negligence, is not a COV.69See U.S. v. Coronado, 603 F.3d 706 (9th Cir. 2010) finding that Pen C § 246.3 is not a COV under 18 USC § 16(a) (or even under § 16(b), which has since been struck down; see Advice to Pen C § 207). “Gross negligence” in § 246.3 does not even require recklessness, a conscious disregard of a known risk. See, e.g., People v. Overman (2005) 126 Cal.App.4th. Still, as always, it is best to get a sentence of 364 or less.

Misd is a “significant misdemeanor” for DACA but 1203.4 might help (or advocates can explore arguments relating to BB guns as opposed to other firearms). See note at PC 25400.

670
PC 261, 286(i) (Not 261(a)(4))

Rape

Yes AF, regardless of sentence.70 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).

PC 261, 286(i)

See PC 136.1(b)(1), 236/237, 243.4, PC 460(a) or (b), and probably 243.4 or 207 can take a sentence of more than 1 year without becoming an AF.

Adam Walsh Act. If V is a minor, conviction can prevent a USC or LPR from immigrating family members in the future. Assume gov’t can use evidence of age from outside the ROC. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

680
PC 261.5(b), (c)

Sex with minor under age 18, if D is at least 3 years older (c) or with no requirement of age difference (b) 

261.5(c) is not an AF as sexual abuse of a minor (SAM) and is not a COV. See Advice for citations.

The same would be true of 261.5(b). 

Not a CIMT. Ninth Circuit held (c) is not a CIMT. BIA’s standard is that it is not a CIMT. 

Still, ICE could conceivably charge it as such. 261.5(b) is less serious and may be more secure.

See Advice for citations. 

ICE will charge 261.5(c) as a deportable crime of child abuse, citing Matter of Aguilar-Barajas. Defenders must avoid even misd 261.5(c), or (b), if deportability is important. If that’s not possible, a plea to (b) is better.

Removal advocates can argue that this is not deportable child abuse. 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.

PC 261.5      

See endnote for discussion and citations.71Pen C § 261.5(c) as an AF. The Supreme Court held that Pen C § 261.5(c) is not an AF as sexual abuse of a minor (SAM). It found that when 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 because it is not abuse. Since the minimum conduct to commit § 261.5(c) includes sex with a 16- or 17-year old minor, and § 261.5(c) is not divisible as to age, no conviction of the offense is SAM. See Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017), and see ILRC, Practice Advisory: Supreme Court Rules on Sexual Abuse of a Minor (June 2017) at https://www.ilrc.org/sites/default/files/resources/advisory_esquivel_quintana.pdf and NIPNLG/IDP, Practice Advisory: Esquivel-Quintana v. Sessions (June 8, 2017) at https://www.immigrantdefenseproject.org/wp-content/uploads/6-8-17-Esquivel-Quintana-practice-advisory-FINAL.pdf. (But see Pen C § 261.5(d), below.)

Section 261.5(c) also is not an AF as a COV. It does not come within the definition at 18 USC § 16(a), and 18 USC § 16(b) has been struck down as unconstitutional. See Pen C § 207 on the definition of COV. Further, the Ninth Circuit previously had held that statutory rape is not a COV even under 18 USC 16(b). U.S. v. Christensen, 558 F.3d 1092 (9th Cir. 2009), Valencia-Alvarez v. Gonzales, 439 F.3d 1046 (9th Cir. 2006).

Pen C § 261.5(c) as a CIMT. It is unlikely but perhaps not impossible that ICE would charge § 261.5(c) as a CIMT, despite Ninth Circuit and BIA decisions. (ICE will charge it as a deportable crime of child abuse; see below.)

The minimum conduct to violate § 261.5(c) involves sex with a minor age 17 who is three years younger than the perpetrator. The statute is not divisible with respect to the age of the minor, so the question is whether consensual sex between a person a day short of their 18th birthday and a person on their 21st birthday is categorically a CIMT. 

The Ninth Circuit has held that the more serious PC § 261.5(d) is not a CIMT. In Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007), the court found that the minimum conduct to commit § 261.5(d), which is sex between a person under the age of 16 and an adult at least 21 years old, is not a CIMT because it is not necessarily harmful to a 15-year-old. The less serious 261.5(c) also is not a CIMT under that ruling. (Note, however, that Quintero-Salazar as applied to § 261.5(d) may well change in future; see next endnote.). The Ninth Circuit has agreed to give Chevron deference to “reasonable” published BIA decisions on CIMT, however.

Significantly, 261.5(c) also does not come within the BIA’s standard. The BIA held that sex with a minor is a CIMT if the minor is under the age of 14, or is under the age of 16 and there is a significant age difference. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), reaffirmed in 27 I&N Dec. 1 (BIA 2020).  The corollary should be that § 261.5(c), which reaches 16- and 17-year olds, with persons just three years older, is not a CIMT. That conclusion seems further supported by the Supreme Court’s in Esquivel-Quintana that § 261.5(c) is not the AF sexual abuse of be a CIMT a minor. The Court noted, among other things, the majority of states do not even criminalize this conduct, and the generic age of consent is 16. See Esquivel-Quintana, 137 S. Ct. at 1569. This makes it hard to assert that community mores find consensual sex with a 17-year-old “depraved,” which is a definition of CIMT.

The only problems are that (a) sometimes ICE or the BIA make bizarre decisions, and in Jimenez-Cedillo the BIA did not literally state that sex with a minor aged 16 or 17 is not a CIMT, and (b) recently the BIA held that, despite Esquivel-Quintana, sex between a 17-year-old and a person 10 years older can be a deportable “crime of child abuse.” See discussion of Matter of Aguilar-Barajas, below. Based on that, ICE conceivably could assert that § 261.5(c) is both child abuse and a CIMT, the BIA might so hold, and the Ninth Circuit might defer and withdraw Quintero-Salazar. This offense will be more or less secure as we see reactions by federal courts to Aguilar-Barajas and any further rulings by the BIA. 

Pen C § 261.5(c) as a crime of child abuse. ICE will charge that under Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021), 261.5(c) is a deportable crime of child abuse because it reaches intercourse with a “child” under the age of 18. Defenders should avoid 261.5(b) or (c), if D needs to avoid a deportable offense. See possible alternatives listed in the chart, including PC 288.3. Advocates in removal proceedings can argue that (1) the case was wrongly decided in general or (2) the case was wrongly decided as applied to ICE is incorrect and Aguilar-Barajas does not apply to PC 261.5(c), and/or (2) the case was wrongly decided. See possible arguments in the 261.5(b) or (c). As always with such arguments, advocates at the same time should investigate the possibility of post-conviction relief. 

In Aguilar-Barajas, the majority of a three-person BIA panel held that a Tennessee statute that prohibits sexual conduct between a minor who is between 13 and 18 years of age, and an adult at least ten years older, is a deportable crime of child abuse. ICE will argue that the finding of child abuse was not based upon the ten-year age difference between the adult and minor, and that it was instead based on the BIA finding that sexual intercourse between an adult and a minor under age 18 is per se child abuse, even if the ages are close. Immigration advocates can point out that the BIA majority did not address the situation where the ages were closer, and that the reason that the decision emphasizes the age 18 cut-off rather than the ten-year age difference is that the BIA’s focus was to justify the fact that the result of the decision was to name a different age cut-off for when intercourse is “abuse” than the Supreme Court did in Esquivel-Quintana, discussed above. The BIA states that certain sexual conduct with a minor under age 18 is a “crime of child abuse,” while the Supreme Court held that for purposes of the AF sexual abuse of a minor, sexual intercourse is not abusive unless the minor is under age 16. See Esquivel-Quintana, discussed above. 

Advocates arguing that Aguilar-Barajas was wrongly decided or does not apply to 261.5(c) should carefully read the opinion and the dissent, especially the discussion of Esquivel-Quintana. Because this decision is so problematic, advocates can ask for an en banc hearing at the BIA as well as appeal to the Ninth Circuit. The Ninth Circuit will defer to a “reasonable” published BIA decision defining “crime of child abuse,” so this definition must be found unreasonable. 

Along with the dissent arguments, and the critical claim that “abuse” has one definition by the Supreme Court and another by the BIA, one can bring up reality. If the BIA did mean to state that any consensual intercourse with a 17-year old, even if the other party is an 18-year-old (or, in the case of § 261.5(c), a 20-year -old), is inherently abusive or harmful to the minor, it failed to present any evidence to support that. It only cited to its own vague definition (or “guideline”) of child abuse from Velasquez. The lack of evidence about harm and abuse stands in contrast to the reality in the United States, where now, as in the time when the child abuse ground was added, the majority of states do not even criminalize consensual intercourse with a 17 year-old, and where over half of 17-year-olds in the U.S. report that they have had sexual intercourse (see, e.g., CDC, Over Half of U.S. Teens Have Had Sexual Intercourse by Age 18, New Report Shows (June 22, 2017), https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2017/201706_NSFG.htm). The BIA, as well as state and federal laws, has found that the presence of a significant age difference is a more serious offense and makes abuse more likely.  See, e.g., Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), affirmed 27 I&N Dec. 782 (BIA 2020) (sexual intercourse 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).

See, however, Garcia v. Barr, 969 F.3d 129, 135 (5th Cir. 2020), cited with approval in Aguilar-Barajas, where the Fifth Circuit deferred to the unpublished BIA decision to find that Texas PC 22.011(a)(2) is a crime of child abuse. The Texas statute is similar to but somewhat more serious than PC 261.5(c) in that it prohibits sexual contact with a minor under age 17 by someone more than three years older, while the cut-off for 261.5(c) is under age 18.

Crime of child abuse. The disadvantage of 261.5(c) is that it will be charged as a deportable crime of child abuse under Matter of Aguilar-Barajas (BIA 2021), which can be interpreted to mean that any consensual sexual conduct between a person over 18 and one under 18 is child abuse. If D needs to avoid becoming deportable (e.g., is an LPR or is an undocumented person who may apply for cancellation of removal or VAWA), defenders must avoid this plea. See alternative plea suggestions, below. 

Removal defense advocates should assert that Aguilar-Barajas (a) is wrong and/or (b) does not apply to 261.5(c) (or even better for purposes of argument, 261.5(b)). See endnote above. Use this time to investigate post-conviction relief, as there is no guarantee this will prevail.

Still, 261.5(c) is far better than 261.5(d). It is likely the Ninth Circuit will withdraw from its own precedent on 261.5(d) and find it is an AF as sexual abuse of a minor, a CIMT, and a crime of child abuse. See 261.5(d), below.

Alternatives. To avoid a deportable crime of child abuse, consider a plea to felony or misd PC 32 or 136.1(b)(1) with less than a year’s sentence, 243(a), 243(e), 236/237, 272, 273a(b), 415, 459 (1st or 2nd degree). Currently 647.6 and 288(c) are safe pleas, but it is possible they would be treated differently outside the Ninth Circuit, or the Ninth would change.

A good alternative may be PC 288.3 with intent to commit 287(b)(1) (oral sex) or 289(h) (penetration) with a minor under age 18, no age difference requirement. The 288.3 should not be a crime of child abuse because it can involve a police officer posing as a child, while the BIA says the harm must be to an actual child. It also is not an AF or a CIMT. See 287, 288.3.

All of these alternatives are safer than 261.5(b). But if none of them are possible, a plea to 261.5(b) rather than (c) might help defeat a charge of child abuse or CIMT.

DACA. 261.5(b), (c) might be held a bar to DACA as a significant misdemeanor. See DACA discussion at PC 25400.

690
PC 261.5 (d)

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

Defenders should assume 261.5(d) is an AF as SAM based on implication in SCOTUS Esquivel case.

Immigration advocates can cite existing Ninth Circuit precedent to the contrary. See Advice.

Defenders assume 261.5(d) may be held CIMT in future and avoid it. It would be a CIMT under the BIA standard, and based on the Esquivel discussion.

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

Assume deportable crime of child abuse.

See discussion of Adam Walsh Act at 261.5(c), above.

PC 261.5

Bad plea. See endnote for discussion and citations.72Pen C § 261.5(d) as an AF. Counsel should try hard to avoid § 261.5(d), since the Ninth Circuit may reconsider its prior favorable treatment of it in light of Esquivel-Quintana. The Ninth Circuit held that § 261.5(d) is not an AF as sexual abuse of a minor (SAM), and advocates in removal proceedings should cite this. Pelayo-Garcia v. Holder, 589 F.3d 1010, 1016 (9th Cir. 2009). Defenders, however, must assume conservatively that at some point the Ninth Circuit may change its analysis based on the implication of the ruling in Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017). In Esquivel-Quintana the Supreme Court held that where a sex offense is based solely on the age of the participants, the generic definition of SAM does not include sex with a minor who is age 16 or older. It found that Pen C § 261.5(c), which includes minors age 16 or older, is not SAM. The Ninth Circuit might decide that because § 261.5(d) is limited to minors younger than age 16, it should reverse itself and find that 261.5(d) is SAM. See discussion in ILRC and NIPNLG/IDP practice advisories on Esquivel, cited in the § 261.5(c) endnote, above.

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. 

Pen C § 261.5(d) as a crime of child abuse. Assume it is. See discussion at § 261.5(c), above, of Matter of Aguilar-Barajas, 28 I&N Dec. 354 (BIA 2021), where a BIA panel held that a Tennessee statute that prohibits sexual conduct between a minor between 13 and 18 years of age and an adult at least ten years older is a deportable crime of child abuse. That is a less serious offense than 261.5(d), which is limited to minors under age 16. Also, the Ninth Circuit held that Wash Rev Code § 9A.44.089, sexual contact (touching intimate parts for purpose of sexual gratification) with a person aged 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.
 

Instead, try hard to plead to alternatives discussed at 261.5(c), if necessary with an additional offense, e.g., 136.1(b)(1) or other.

In Esquivel-Quintana (2017) the Supreme Court held that 261.5(c) is not SAM because consensual sexual intercourse with a minor age 16 or older is not inherently abusive. Courts may well draw the conclusion that intercourse with a minor under age 16 is abusive. Thus while current Ninth Circuit precedent holds 261.5(d) is not SAM or a CIMT, this could change and therefore defenders should avoid this plea.

Consider 261.5(c) and/or an age-neutral offense such as 136.1(b)(1), 236/237, 243(a), (d), (e), 243.4, 245, 273a(b) or if necessary (a), 288(c), 314, 459/460(a) or (b), 647.6. D can take sex offender registration on these without the offense becoming SAM. Some but not all of the above offenses have other immigration consequences, or need to avoid a year or more sentence; check the chart for each offense.

Immigration advocates in removal proceedings will cite current good Ninth Circuit precedent, but should seek other defense strategies as well.

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

This is likely a significant misdemeanor for DACA. See DACA discussion at PC 25400.

700
PC 266

Pimping and pandering

Likely charged as AF. See Advice.

Yes CIMT

Deportable child abuse if ROC shows person under age 18; plead to the second clause that is not age specific.
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.

PC 266

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.73Regarding the aggravated felony sexual abuse of a minor (SAM), if Pen C § 266 is found to be divisible among the types of conduct, a record of conviction that states that the person recruited was over the age of 18 will prevent the offense from being held an aggravated felony as SAM. If the statute is not divisible, no conviction is SAM, regardless of information in the record of conviction.See explanation of the categorical approach at ILRC, How to Use the Categorical Approach Now (2021).

.

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.4th 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 Categorical Approach Advisory for more information.

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 (7th 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.

710
PC 270

Failure to provide for child

Not AF.

Should not be held CIMT: no element of harm or destitution

Should not be deportable crime of child abuse; does not require likely risk of harm. See PC 273a(b).

PC 270

While the minimum conduct does not appear to be CIMT or child abuse, where possible include in ROC that child was not at risk of being harmed or deprived.

720
PC 270.1

Failure to get child to school

Not AF.

Should not be held CIMT; see Advice.

Should not be deportable crime of child abuse; see PC 273a(b)

PC 270.1

While an age-neutral offense is preferable, this ought not to be charged as child abuse, neglect, or abandonment as defined by BIA. There is no bad intent and can be committed by failure to “reasonably” encourage truant to go to school

730
PC 272

Contribute to the delinquency of a minor

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

Not CIMT74See, 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.

PC 272

Because PC 272 can involve exposing minor to only mild harm, it does not meet the BIA’s definition of child abuse.75In Matter of Soram, 25 I&N Dec. 378 (BIA 2010) the BIA did not provide a definition of child abuse, but it stated that a Colorado child endangerment statute is a crime of child abuse because the defendant must have recklessly, unreasonably, and without justifiable excuse placed a child where there was a “reasonable probability” that the child “will be” injured, meaning a threat to the child’s life or health, even if the child was not actually harmed. Conversely, the BIA has stated that Pen C § 273a(b) is not a deportable crime of child abuse because the minimum conduct to commit the offense does not require a sufficiently high likelihood that harm will result. Matter of Mendoza Osorio, 26 I&N Dec. 703, 710 (BIA 2016). Penal C § 272, like Pen C § 273a(b) does not require a likelihood that harm will result. See CALCRIM 2980. Penal Code § 272 has been used to, e.g., prosecute the sale of liquor to a minor without requiring ID. People v. Laisne, 163 Cal. App. 2d 554 (Cal. App. 3d Dist. 1958).

While this is a good alternative to more harmful offenses involving a minor, to be sure to avoid a crime of child abuse, plead to an age-neutral offense.

Adam Walsh Act. If V is a minor and sex was involved, it’s possible that a conviction can prevent a USC or LPR from immigrating family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

740
PC 273d

Child, Corporal Punishment

Get 364 days or less to avoid an AF as COV.76See Olea-Serafina v. Garland, No. 20-72231 (9th Cir. 2022) (holding that 273d(a) is categorically a crime of violence).
See § N.4 Sentence.

Yes CIMT

Deportable crime of child abuse. See Advice

PC 273d

To avoid child abuse, plead to age-neutral offense with no minor age in the ROC (although even if minor age appears in ROC, it still should not be a crime of child abuse; see endnote at PC 243(a)). Consider PC 32, 136.1(b)(1), 243, 236/237, 459, etc., with less than 1 yr if needed, and 273a(b).

760
PC 273.5

Inflict Spousal Injury

Get 364 days or less on any single count to avoid AF as a COV.77See, 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 this has failed in the past.

Ninth Circuit held not CIMT if V is former co-habitant,78Morales-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).

PC 273.5

To avoid COV and DV, see PC 32 or 136.1(b)(1) (with 364 days or less); 236/237, 243(a), 243(e), 459 1st or 2nd, 591, 594, and others; do not plead to 243(d), 245, or 422. 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.79The 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.80Section 273.5 is divisible only if, in order to find the defendant guilty, in every case a jury must unanimously agree as to the type of relationship. (See ILRC, How to Use the Categorical Approach Now (2021) for more information. Immigration advocates can explore arguments that § 273.5 is not divisible as to the type of relationship. CALCRIM 840 does not require unanimity as to the type of relationship, and there do not appear to be state cases holding that this is required. A Ninth Circuit panel held that § 273.5 is divisible (Cervantes v. Holder, 772 F.3d 583, 588 (9th Cir. 2014)), but Judge Bybee did not undertake any divisibility analysis based upon elements and the requirement of jury unanimity. After Cervantes was published, the Supreme Court made it even more clear that this must be undertaken in order to establish whether a statute is truly divisible. See discussion of Mathis v. United States, 579 U.S. 500, 518 (2016) and the categorical approach a at ILRC, How to Use the Categorical Approach Now (2021).

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

770
PC 273.6(a)

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.

PC 273.6

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 endnote81Defenders 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 ILRC, Case Update: Domestic Violence Deportation Ground (Nov. 2019) at www.ilrc.org/crimes.

780
PC 281

Bigamy

Not AF

Should not be CIMT, but see Advice

No other removal ground.

PC 281

Should not be a CIMT despite the availability of a defense of lack of guilty knowledge,82As written, Pen C § 281 does not require the prosecution to prove any guilty knowledge or bad intent on the part of the defendant; it is a strict liability offense. Case law has added as an affirmative defense the defendant’s reasonable belief that the first marriage had ended. People v. Vogel (1956) 46 Cal.2d 798, Forbes v. Brownelle, 149 F.Supp. 848 (D.D.C. 1957). However, the existence of an affirmative defense should not be held to add the element of guilty knowledge to the statute under the categorical approach, so no conviction for § 281 should be held a CIMT. but counsel should assume it might be charged as one and seek another offense if avoiding CIMT is crucial.

790
PC 286(b), 287(b), 289(h), (i) For analysis of PC 286(f), go to PC 261(a)(4)

Sexual conduct with a minor:

286(b)(1), 287(b)(1), 289(h) prohibit respectively sodomy, oral sex, and penetration with a person under age 18.

PC 286(b)(2), 287(b)(2), 289(i) prohibit this with a person under age 16, where D was at least age 21.

No element of coercion

Appears that some sections are AFs and some are not.83SAM and PC 286, 287, 289. The aggravated felony sexual abuse of a minor (SAM) is evaluated under the categorical approach, based on the minimum conduct required for guilt under the statute. To determine the consequences of PC §§  286, 287, 289 with a minor (respectively sodomy, oral sex, and penetration), we consider PC § 261.5 (sexual intercourse with a minor), because the elements are similar and there is extensive precedent on immigration consequences of PC § 261.5.

The Supreme Court held that § 261.5(c), sexual intercourse with a minor who is under age 18 and three years younger than the perpetrator, is not an AF as SAM because it does not require the minor to be under the age of 16. Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017). Sections 286(b)(1), 287(b)(1), and 289(h) also should not be held to be SAM. In fact, they are even less serious than § 261.5(c) because they involve sexual conduct with a minor under the age of 18, but with no requirement a three-year age difference.  

Section 286(b)(2), 287(b)(2), and 289(i) involve sexual conduct with a person under the age of 16. In Esquivel-Quintana, the Court stated that in the case of sexual intercourse, “the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.” Id. at 390-391. While advocates may argue that this does not require such a finding for these statutes, and while the Ninth Circuit earlier held that the corresponding statute, PC 261.5(d), is not SAM, defenders must not take this chance; assume this is SAM.
 

PC 286(b)(1), 287(b)(1), 289(h) are not AFs as SAM because minor is under age of 18, based on  Supreme Court ruling on the similar 261.5(c).

Assume 286(b)(2), 287(b)(2), 289(i) will be held AFs as SAM under S.Ct decision because they require a minor under age 16 and perpetrator age 21 or older (although an older Ninth Cir. decision held otherwise). 

See endnote above and see PC 261.5(c), (d)

Appears that some sections are CIMTs and some are not.84CIMT. Sections 286(b)(1), 287(b)(1), and 289(h) should not be held to be a CIMT because they involve sexual conduct (sodomy, oral sex, penetration) with a person under age 18.  The BIA held that sexual intercourse with a minor is a CIMT if the minor (a) is under the age of 14, or (b) is under the age of 16 and there is a significant age difference. Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), reaffirmed in 27 I&N Dec. 1 (BIA 2020). These offenses are not CIMTs under that standard because the minor is under age 18, not age 16, and there is no requirement of any age difference. 

In contrast, sections 286(b)(2), 287(b)(2), and 289(i), are at great risk of being held CIMTs, despite Ninth Circuit precedent to the contrary, because the BIA asserts that the conduct is a CIMT. These sections prohibit sexual conduct with a minor under age 16, where the perpetrator is at least 21 years old. In Matter of Jimenez-Cedillo, supra, the BIA held that soliciting such an act under a Maryland statute (MCL 3-307(a)(4), (5)) was a CIMT. Years earlier, the Ninth Circuit had held the opposite. It had found that California PC § 261.5(d), sexual intercourse with a minor under age 16 where the perpetrator is at least age 21, is not a CIMT, because it does not necessarily harm the minor. Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007). However, the Ninth Circuit also has held that it owes Chevron deference to a reasonable, on-point, published BIA decision. See Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc). So if a case involving 261.5(d) or one of the above statutes ever goes to the Ninth Circuit, the court may well withdraw Quintero-Salazar and adopt the BIA’s rule in Jimenez-Cedillo.

PC 286(b)(1), 287(b)(1), 289(h) should not be held CIMTs under BIA standard because they only require a minor under age 18.

Conservatively assume 286(b)(2), 287(b)(2), 289(i) will be held CIMTs under BIA standard because minor must be under age 16 and perpetrator age 21 or older. Removal defense: note older Ninth Circuit decision holds the opposite. 

See endnote above and see PC 261.5(c), (d)

Advice: crime of child abuse. Even PC 286(b)(1), 287(b)(1), 289(h) (minor under age 18) will be charged as a deportable crime of child abuse[LG1] [LG2] [KB3] [KB4] [KB5] , in light of Matter of Aguilar-Barajas. See discussion at PC 261.5(c). 

To avoid this consider alternative pleas. If this offense cannot be avoided, consider a plea to PC 288.3 with intent to commit 287(b)(1), 286(b)(1), or 289(h). PC 288.3 includes an officer posing as a minor, and the BIA held that that is not a crime of child abuse. See discussion of  Matter of Jimenez-Cedillo at PC 288.3.   

Assume that PC 286(b)(2), 287(b)(2), 298(i) will be held crimes of child abuse.

PC 286(b), 287(b), 289(h), (i)

These offenses likely have the same immigration consequences as 261.5(b)/(c) (intercourse with a minor under age 18) or 261.5(d) (intercourse with a minor under age 16, if perpetrator was age 21 or older), depending on whether the offense requires cut-off of age 18 or 16. We compare these statutes to 261.5(c), (d) because there is extensive case law on the immigration consequences of PC 261.5 and the offenses share similar elements. 

Note that 286(b)(1), 287(b)(1) and 289(h) are even less serious than 261.5(c), because 261.5(c) requires the perpetrator to be at least three years older than the minor, while these statutes have no requirement of age difference. Under the categorical approach, these statutes should be evaluated as if the perpetrator had just turned 18 and the minor was a few days away from their 18th birthday. 

Under the categorical approach, all statutes discussed in this section are evaluated as if conduct is consensual.

Alternative pleas. Rather than 286(b)(2), 287(b)(2), 289(i), consider 286(b)(1), 287(b)(1), 289(h), or 288.3 to commit those less serious offenses, or consider: 459 first or second degree, 243(a), (e), 236/237; or 136.1(b)(1) or PC 32, with sentence of less than a year; or 207(a) or 243.4, trying for a sentence of less than a year (but 243.4 is a CIMT). Or consider offenses like 288(c) or 647.6 which the Ninth Circuit has held not to be SAM or a CIMT, although other circuits might differ. 

Child abuse. Even 286(b)(1), 287(b)(1) and 289(h) might be charged as deportable child abuse, due to the confusing  Matter of Aguilar-Barajas (BIA 2022). Consider PC 288.3. See further discussion at 261.5(c).

800
PC 286(g), (h), (i)

Sodomy without consent due to disability, intoxication etc.

AF as rape for 286(i) and likely (g), (h), regardless of sentence

CIMT

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

PC 286

Ninth Cir held that like other types of intercourse, sodomy without consent because V is intoxicated, PC 286(i), is rape.85Elmakhzoumi v Sessions, 883 F3d 1170 (9th Cir. 2018). See also Matter of Keeley, 27 I&N Dec. 146 (BIA 2017) (nonconsensual vaginal, anal, or oral penetration, including by digital or mechanical means, is rape). Likely to also apply to lack of consent due to disability, awareness, per (f), (g).

810
PC 288(a)

Lewd act with minor under 14

Held AF as sexual abuse of a minor, regardless of sentence, although imm advocates at least can argue Ninth Cir should rehear en banc86Since 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.

PC 288

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 older87Blandino-Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013) (§ 288(a) is not PSC where there is an honest belief that the victim was older). (but still a bar to asylum, as an aggravated felony).

Assume bar to DACA; see note at PC 25400.

Adam Walsh Act. This conviction can block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

820
PC 288(c)(1)

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

SAM. Ninth Circuit held not AF as SAM.

But if D ends up proceedings outside the Ninth Circuit, there could be a different outcome.

Not a COV.

Unclear. 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.

PC 288

For citations and further discussion, see endnote.88AF. Section 288(c) is not a COV. The Ninth Circuit held that felony § 288(c) is a COV only under the “ordinary” case test and 18 USC § 16(b). Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013). This no longer applies because the Supreme Court struck down § 16(b) as void for vagueness in Sessions v. Dimaya. See Dimaya discussion at Pen C § 207, above.

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 ILRC, How to Use the Categorical Approach Now (2021) for more information). 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).

Other removal grounds. 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 has held that 288(c) is not an AF as sexual abuse of a minor (SAM), and is not a CIMT, crime of child abuse, or crime of violence. ICE might assert in future that it is a CIMT and/or crime of child abuse and if so, it’s possible the Ninth Cir would defer. 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.

830
PC 289 (a)(1)(A) For analysis of PC 289(d), go to PC 261(a)(4)

Sexual penetration by force or duress

Assume AF as rape, regardless of sentence, but see Advice.
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

PC 289

Rape. The BIA held that the generic definition of rape includes any penetration, including digital or mechanical, and that would include all of PC 289(a). Advocates in removal proceedings can investigate arguing to the Ninth Circuit that its generic definition of rape has included or should include only intercourse; that would make PC 289 overbroad. They should seek other defense strategies including post-conviction relief while pursuing this.89Advocates 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.

[ii] The 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.

Consider 459/460(a) or (b), which can take a year or more, or 243.4, 236/237, which arguably can.

Arguably, 289(d) is not “rape” for immigration purposes. See 261(a)(4).

COV. This should not be a COV because it can be committed by psychological duress not based on threat of force or violence.[ii] But if it is AF as rape, this provides no advantage.

840
PC 289(e)

Sexual penetration if D knew or should have known that V was too intoxicated to consent

Assume it will be an AF as rape regardless of sentence, but see also discussion at 289(a)(1)(A), Advice.

Yes CIMT (imm advocates could investigate defense based on “should have known” standard but must pursue other defenses at the same time.)

See 289(a)(1)(A)

PC 289

Rape. See 289(a)(1)(A) regarding definition of rape and penetration.

Ninth Cir held that “should have known” that V was impaired meets the mental state requirement for rape; see PC 261.

COV. This might be held not a COV under Stokeling because actual force, even minor, is not required. See discussion at PC 207 and 289(a). But if it is an AF as rape, this provides no advantage.

850
PC 290

Failure to register as a sex offender

Not AF

Although it should not be CIMT, assume it might be charged as one at least in some regions; see Advice

Conviction under state law for failing to register is a federal offense, 18 USC 2250, and the federal conviction is a basis for removal.90 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).

PC 290

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.91In Pannu v. Holder, 639 F.3d 1225 (9th Cir. 2011) the court remanded to the BIA to re-consider its holding in Matter of Tobar-Lobo, 24 I&N Dec. (BIA 2007), which is in tension with the requirement that an intent of at least recklessness is required for a CIMT. The BIA has not yet issued another opinion.

Thus, in the Ninth Cir this should not be held a CIMT, but some risk remains that it would be so held outside the Ninth Cir, or conceivably that Ninth Circuit would change its rule in future.

860
PC 311.3(a)

Copy, exchange, etc. child pornography

Held not AF as child pornography See Advice.

Yes CIMT; see 311.11(a)

No other removal ground.

PC 311.3

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.92US v Reinhart, 893 F3d 606 (9th Cir 2018). But might be held AF outside of Ninth Circuit.

870
PC 311.11(a)

Possess child pornography

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

Yes CIMT.93Matter of Olquin-Rufino, 23 I&N Dec. 896 (BIA 2006).

No other removal ground.

PC 311.11

AF: See endnote for citations and discussion.94The 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 an AF as child pornography outside the Ninth Circuit.

880
PC 313.1

Distribute, exhibit, obscene materials to a known minor, or without reasonable care to ascertain true age

Not AF

Should not be CIMT: no element of intent to arouse and can be based on negligent failure to ascertain age or properly shield document.95See, 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.96 See discussion in Berry v. City of Santa Barbara (1995) 40 Cal. App. 4th 1075, 1080-82.

PC 313.1

Adam Walsh Act. Conceivably the gov’t would assert that this conviction can block a USC or LPR’s ability to immigrate family members in the future under the Adam Walsh Act. While this seems incorrect given the minor harm and mens rea of negligence, there is little recourse if the government does so and they might rely on facts outside the record. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

890
PC 314 (1)

Indecent exposure

Not AF as sexual abuse of a minor even if minor’s age is in ROC,97See 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).

PC 314

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.98In 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).

900
PC 315

Keeping or residing in a place of prostitution or lewdness

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

BIA held it is a CIMT, but advocates may have strong argument against this. See Advice.

See Advice for discussion of inadmissible for engaging in prostitution. See also PC 370

PC 315

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.99The definition of aggravated felony “relating to prostitution” is defined as owning or controlling a prostitution business. 8 USC § 1101(a)(43)(K)(i). Merely working as a prostitute does not come within the definition. Section § 315 “keeping or residing in house of ill-fame,” reaches the sex workers. See People v. Pangelina (1981) 117 Cal. App. 3d 414. It also reaches non-prostitutes who reside in the house. See Cartwright v. Board of Chiropractic Examiners, supra. This ought to distinguish this offense from a Wisconsin Statute, 944.34(1), that the BIA held is categorically an AF because it reached only persons who keep or grant use of a place of prostitution. Matter of Ding, 27 I&N Dec 295 (BIA 2018). Note that in Ding the BIA held that for purposes of § 1101(a)(43)(K)(i), prostitution is defined to include a lewd act in exchange for value and is not limited to sexual intercourse.

CIMT: Old BIA decision held 315 is a CIMT, but it did not consider the fact that merely residing (which includes residency by a non-sex worker) should not be a CIMT.100In Matter of P–, 3 I&N Dec. 20 (BIA 1947), the BIA held that a conviction under Pen C § 315 for keeping a house of ill fame is a CIMT. However, it did not consider that § 315 covers simply renting living space in a house of ill fame, which arguably is not a CIMT. See Cartwright v. Board of Chiropractic Examiners, 16 Cal. 3d 762, 768 (Cal. 1976) (“Thus, conviction of violating section 315 does not necessarily require proof of personal or entrepreneurial participation in illicit sexual activities. Instead, the conviction can be based on circumstances of personal residence wholly unrelated to chiropractic practice and only peripherally related to prostitution. Such a conviction would not demonstrate professional unfitness on account of baseness, vileness or depravity.”) As a state case this does not control as to the issue of whether the offense is a CIMT for moral turpitude purposes but does control in its characterization of the elements of the offense. But an unrepresented D may not be able to raise this.

While 315 should not be divisible, best practice is a specific plea to residing. See also PC 370.

Inadmissible for engaging prostitution: A person is inadmissible who engaged in or received proceeds from prostitution within the last 10 years or plans to now. Prostitution is defined as sexual intercourse (not merely a lewd act) for a fee. No conviction is required. See PC 647(b). Conviction under an overbroad statute like this alone does not prove inadmissibility for prostitution,101The State Department defines prostitution for the inadmissibility ground as “engaging in promiscuous sexual intercourse for hire.” 22 C.F.R. § 40.24(b), discussing 8 USC § 1182(a)(2)(D)(i). Courts have adopted that definition for the inadmissibility ground (see Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006)). They also had applied it to the aggravated felonies that involve prostitution, e.g. 8 USC § 1101(a)(43)(K)(i). See, e.g., DePasquale v. Gonzales, 196 Fed.Appx. 580, 582 (9th Cir. 2006) (unpublished) (prostitution under Hawaiian law divisible because includes lewd acts); Prus v. Holder, 660 F.3d 144, 146-147 (2d Cir. 2011) (same for New York offense of promoting prostitution in the third degree); see also Familia Rosario v. Holder, 655 F.3d 739, 745-46 (government, IJ and BIA agreeing that under 8 USC § 1328 importation of persons for the purposes of prostitution is an aggravated felony while importation for other immoral purposes is not under 8 USC § 1101(a)(43)(K)(i)). California law broadly defines prostitution as engaging in sexual intercourse or any lewd acts with another person for money or other consideration. Lewd acts include touching of genitals, buttocks or female breast with the intent to sexually arouse or gratify. CALCRIM 1153. but gov’t can present other evidence of conduct.

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

910
PC 368 (b), (c)

Elder abuse: Injure, Endanger

Should not be AF as COV because it is an indivisible statute that can be committed by negligence. Still, try to plead to 364 days or less. See Advice.

Should never be a CIMT because it is an indivisible statute that can be committed by negligence. But best practice is specific plea to negligence. See Advice.

Not deportable DV offense, unless elder is protected by DV laws and offense is held a COV (which arguably would be incorrect).

PC 368(b), (c)

AF, CIMT. Other than type of victim, PC 368(b), (c) uses the very same statutory language as PC 273a(a), (b) (child abuse). The Ninth Cir found that 273a(a) and (b) can be committed by negligence and are not divisible statutes, and thus that no conviction is a COV.102In considering Pen C § 368, see Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016) on the nearly identically worded statute on child endangerment, Pen C § 273a. “Although section 273a(a) requires a mens rea of ‘willful[ness]’ for the three prongs of the statute that criminalize indirect infliction of harm or passive conduct, the California Supreme Court has interpreted ‘willful[ness]’ in this context to require proof only of criminal negligence.” See also CALCRIM 830, requiring negligence for Pen C § 368. No 273a conviction should be a CIMT, for the same reason.

The same findings should apply to 368(b), (c). But to provide more protection, plead specifically to negligent, less egregious conduct, and try to obtain 364 or less.

920
PC 368(d)

Elder abuse: Theft, Fraud, Forgery, 530.5 by D who knows or should know V is an elder

368(d)(1) risks being an AF if 1 yr or more is imposed and/or loss > $10k. See Advice.

(d)(2) does not have this risk because the top is 364 days and loss of $950 or less

Assume CIMT, except: See PC 530.5(a), which generally is not a CIMT because it does not require any loss. If 368(d) can be committed without causing any loss to V, arguably 368(b)/530.5(a) is not a CIMT.

No other removal ground.

PC 368(d)

AF: See Advice to PC 484. In sum, fraud/deceit is an AF if loss to the V exceeds $10k. Theft is an AF if a year or more is imposed. Try to take a specific plea to the option that avoids an AF, although arguably the statute is not divisible.

Plead to deceit (embezzlement, fraud, identity theft) only where loss to victim does not exceed $10,000. This can take a sentence of over a year.

If loss > $10k, plead to straight theft (taking by stealth). Avoid 1 yr or more on any one count. Theft can take either 1 yr or loss > $10k, but not both on a single count.

Forgery plea should not take either 1 yr or $10k loss. Plead to a specific offense other than forgery.

930
PC 381, 381b

Possess, use toluene (381), nitrous oxide (381b)

Not AF

Not CIMT

Appear to not be CS offenses because they do not appear on federal schedules

PC 381, 381b

Possible drug charge alternative; six-month misdemeanor.

Being under the influence under PC 381 is eligible for PC 1000 pre-trial diversion (and was for former DEJ) treatment. See discussion of those at H&S C 11377.

950
PC 403

Disturb public assembly

Not AF.

Not CIMT; see Advice

No other removal ground.

PC 403

This does not have CIMT elements, but for extra protection keep ROC free of very bad conduct or violence.

960
PC 415

Disturbing the peace

Not AF.

Not CIMT

No other removal ground.

PC 415

970
PC 416

Failure to disperse

Not AF

Not CIMT

No other removal ground.

PC 416

980
PC 417(a) (1) Non-firearm (2) Firearm

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

Not AF: maximum 364 days

Should not be a CIMT but some advocates fear it will be so charged.103PC 417 as CIMT.  Arguably it is not a CIMT. See Matter of G.R., 2 I&N Dec. 733, 738-39 (1946), citing People v. Sylva, 143 Cal. 62 (1904), comparing assault with a deadly weapon, which the BIA in this case stated requires specific intent to injure and is a CIMT, to brandishing a weapon, which is a “general intent” crime, and the BIA implied, not therefore a crime of moral turpitude. Section 417(a)(2) does not distinguish between “loaded” or “unloaded” firearm, and the BIA stated that “[p]ointing an unloaded gun at another, accompanied by a threat to discharge it without any attempt to use it, except by shooting, does not constitute an assault. There is in such case no present ability to commit a violent injury on the person.” 

417(a)(2) is not a deportable firearms offense, but see Advice.

See Advice if V has domestic relationship or is a minor.

PC 417(a)

AF, crime of DV: While no conviction should be held a COV, and therefore not a crime of DV, the best practice is a plea to rude rather than threatening conduct, especially if V is protected under DV laws.

Firearms: 417(a)(2) is not a firearms offense under the antique firearms rule.104Section 417 is not a deportable firearms offense because it uses the definition of firearms at Pen C § 16520(a). See CALCRIM 980-983 and see Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014), U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). See PC 29800(a). But try to plead to 417(a)(1) in case D is unrepresented and cannot raise this defense.

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

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

990
PC 417.3, 417.8

Exhibit firearm in a threatening manner so V reasonably could fear, or to evade arrest.

Get 364 days or less to avoid AF as COV for 417.3, but see advice for 417.8.105Bolanos v. Holder, 734 F.3d 875 (9th Cir. 2013) (Pen C § 417.3 is a COV under 18 USC § 16(a)), distinguishing Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir.2011). The Ninth Circuit also held that § 417.8 is a COV in Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 941 (9th Cir. 2004). However, the court did not consider the argument that § 417.8 applies to a person who threatens to harm themselves, while the immigration definition of a COV, 18 USC 16(a), only covers force “against the person or property of another.” See discussion, e.g., in Herdocia v Garland, No. 19-70266, 2021 WL 1345424 (9th Cir. Apr. 12, 2021). To avoid 1-yr sentence, see § N.4 Sentence.

Assume CIMT

See PC 417(a)(2)

PC 417.3, 417.8

AF as COV. Arguably PC 417.8 is not a COV under 18 USC 16(a) because it includes violence to self, not only to “other,” which is part of § 16(a).

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

See PC 417, 240, for better plea.

1000
PC 417.4

Exhibit imitation firearm in threatening manner; V reasonably could fear

COV, but not AF because maximum less than one year

Assume a CIMT

Not deportable firearms offense; see Advice.

DV offense if showing that V is DV-type V.

PC 417.4

Imitation firearm is defined at PC 16700; this does not appear to be included in the 18 USC 921 federal definition. Federal offense prohibiting imitation guns without orange cap (15 USC 5001) is not listed in firearms AF definition at 8 USC 1101(a)(43)(E).

1010
PC 417.26

Unlawful laser activity

Not a COV

Not categorically a CIMT; see Advice

No other removal ground.

PC 417.26

CIMT: Ninth Cir held that violating 417.26 by using a laser pointer, at least, is not a CIMT.106Coquico v. Lynch, 789 F.3d 1049, 1050 (9th Cir. 2015) (misdemeanor unlawful laser activity under Pen C § 417.26 is not a categorical crime involving moral turpitude because it can be violated by conduct that resembles non-turpitudinous simple assault and has little similarity to a terrorizing threat. To be sure to avoid a CIMT, plead to use of a laser pointer.

For prior convictions where this was not done, immigration counsel may argue the statute is indivisible between laser pointers and other items.

1020
PC 422

Criminal threats (formerly terrorist threats)

Get 364 days or less on any single count to avoid AF as COV.107Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. 2003). See § N.4 Sentence. See Advice.

Yes CIMT108Latter-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).

PC 422

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

1030
PC 451, 452

Arson by malice, PC 451

Unlawful burning by recklessness, PC 452

Ninth Circuit held PC 451 is not an AF as arson, but see Advice

PC 452 should not be arson but see Advice

Neither should be a COV under 18 USC 16(a)

PC 451, 452 will  charged as CIMTs, but there are arguments against this. See Advice

No other removal ground.

PC 451, 452 

See endnote for citations and further discussion.109PC 451 as arson. An offense “described in” 18 USC 844(i) is an AF as arson. 8 USC 1101(a)(43)(E)(i). In other words, 8 USC 844(i) is a generic definition of arson for purposes of the categorical approach. In Togonon v. Garland, 23 F.4th 876 (9th Cir. 2022), the Ninth Circuit held that PC 451(b) is not arson because it has a broader mens rea than 844(i). Because 451(a)-(e) all share the same mens rea, no conviction under 451 can be an AF under Togonon. But because at this writing Togonon still could be reheard en banc, defenders should look for alternatives. 

The generic definition at 18 USC 844(i) punishes one who maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property …” In Togonon, the Ninth joined other circuits to find that “maliciously” here means the person “either intentionally damages or destroys property covered by § 844(i) or acts ‘with willful disregard of the likelihood that damage or injury would result from his or her acts.’ To act with ‘willful disregard,’ the defendant must be subjectively aware of the risk that his actions will damage or destroy property and take the actions nonetheless.” 23 F.4th at 878 (emphasis supplied).

PC 451 punishes a person who “willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.” “Willfully” in PC 451 employs the general definition of “simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” PC 7(1), cited in People v. Atkins, 25 Cal. 4th 76, 85 (2001). The key is the definition of maliciously. The Ninth Circuit recognized that “maliciously” for PC 451 has been held not to require a conscious disregard of a known risk, but rather to require failing a reasonable person standard. In other words, 844(i) requires a subjective awareness of the known risk while 451 does not.

The case most relevant for our analysis is the California Supreme Court’s decision in In re V.V., 51 Cal.4th 1020, 125 Cal.Rptr.3d 421, 252 P.3d 979 (2011). There, two teenagers ignited a firecracker and threw it onto a brush-covered hillside, starting a fire that burned five acres of forest land. Id., 125 Cal.Rptr.3d 421, 252 P.3d at 980–81. The evidence established that the defendants intentionally ignited the firecracker and threw it onto the hillside, but they had not intended to burn forest land. Id., 125 Cal.Rptr.3d 421, 252 P.3d at 985. The California Supreme Court upheld their juvenile adjudications under California Penal Code § 451. The court concluded that malice under § 451 requires only “a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property.” Id., 125 Cal.Rptr.3d 421, 252 P.3d at 984. The defendants in V.V. did not need to “know or be subjectively aware that the fire [on the forest property] would be the probable consequence of their acts.” Id., 125 Cal.Rptr.3d 421, 252 P.3d at 985 (emphasis added). Instead, they could be convicted so long as they were aware of facts that “would lead a reasonable person to realize that the direct, natural, and highly probable consequence of igniting and throwing a firecracker into dry brush would be the burning of the hillside.” Id.

Togonon, 23 F.4th at 879.

Accordingly, the Ninth Circuit held that PC 451 is not a categorical match to 18 USC 844(i) and is not an AF as arson. See also Mason v. Superior Ct. (2015) 242 Cal. App. 4th 773, 784 (lighting firecracker and throwing it into the water of a swimming hole, where sparks still started a fire, is arson under PC 451).

PC 452 as arson. This is a preliminary analysis, and one that ICE might or might not contest.

As discussed above, 18 USC 844(i) serves as a generic definition of the aggravated felony arson. In Togonon v. Garland, 23 F.4th 876 (9th Cir. 2022), the court found that 18 USC 844(i) prohibits “maliciously” damaging certain property with fire or explosives, where maliciously means damaging the property intentionally or recklessly (conscious disregard of a known risk of damage). PC 452 punishes one who “recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.”   Under PC 450(f), recklessly here “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 a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”  PC 452 offense of “unlawfully causing a fire covers reckless accidents or unintentional fires….For example, such reckless accidents or unintentional fires may include those caused by a person who recklessly lights a match near highly combustible materials.”  People v. Atkins, 25 Cal.4th at 89.  Furthermore, PC 452 is a general intent crime where the reckless act is satisfied when (1) the person does the act that presents the risk of causing the fire, and (2) the person is unaware of the risk due to voluntary intoxication.  Thus, because PC 452 employs a reasonable person standard and does not require the person to be subjectively aware of the risk, PC 452 should not be a match to the generic arson.  See CALCRIM 1530, 1531, 1532 and PC 450(f) defining reckless is include those who are unaware of the risk due to voluntary intoxication.  

“Recklessly” should be held the mens rea for causing a fire at all, so that PC 452 prohibits recklessly/unintentionally lighting a fire. That is broader than 18 USC 844(i), which prohibits intentionally or recklessly damaging property with a fire. The plain language of 452 and its subsections indicate that PC 452 prohibits recklessly causing the fire, without intending to. Section 452 punishes one who recklessly “causes to be burned … any structure, forest land, or property.” This language is identical to PC 451. Interpreting the same phrase in PC 451, the California Supreme Court stated, “The statute does not require an additional specific intent to burn a ‘structure, forest land, or property,’ but rather requires only an intent to do the act that causes the harm. This interpretation is manifest from the fact that the statute is implicated if a person ‘causes to be burned … any structure, forest land, or property.’” People v. Atkins (2001) 25 Cal. 4th 76, 86. The Court noted that specific intent to destroy property was included in arson statutes in 1872 but this was dropped in 1929. Id. See also People v. Morse (2004)116 Cal. App. 4th 1160, 1163. See also, e.g., People v. Hooper (1986) 181 Cal. App. 3d 1174, 1183 (where the defense asserted that the fire was started recklessly and without intention, because a cigarette or burning paper blew out of the car window, it was error (although for other reasons, not reversible error) to fail to give instruction for PC 452) and see People v. Atkins, 25 Cal. 4th at 88 (“[T]he lesser offense [PC 452] requires mere recklessness; arson [PC 451] requires the general intent to perform the criminal act.”).

On a more foundational note, the Supreme Court held that state arson statutes can be held aggravated felonies as analogues to 18 USC 844(i), despite lacking the federal jurisdictional element in that statute. Luna Torres v. Lynch, 578 U.S. 452 (2016).

PC 451, 452 as a COV. A COV is an AF if a year or more is imposed. 8 USC § 1101(a)(43)(F). Crime of violence is defined for immigration purposes at 18 USC 16 as: “(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, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Supreme Court in Dimaya found 18 USC 16(b) to be unconstitutional, so that only 16(a) defines a COV now. See discussion at PC 207.

Before 18 USC 16(b) was struck down, PC 451, 452 were considered COVs as causing a “substantial risk” of force under 16(b), as long as the fire damaged another’s property rather than the person’s own. See, e.g., Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir. 2007) (PC 452 is divisible as a COV to the extent it includes one’s own property), Cabrera-Arucha v. Holder, 378 F. App’x 662, 664 (9th Cir. 2010) (PC 451 is divisible on same basis). Those decisions are struck down by Dimaya. 

There is no precedent discussing whether 451 or 452 (involving property that is not one’s own) is a COV under 18 USC 16(a). Because PC 451and 452 involve a mens rea of recklessness or lesser mens rea as to starting the fire neither offense should be found to have the required element of use of intentional, aggressive force against person or property. (In fact, some circuits found that recklessly causing a dangerous fire was not a COV under 18 USC 16(b). See, e.g., Tran v. Gonzales, 414 F.3d 464, 472–73 (3d Cir. 2005).) If they were to be held a COV, that still would not apply to burning one’s own property.

PC 451, 452 as CIMTs. Regarding PC 451, it has long been held that intentional arson is a CIMT. See Rodriguez-Rodriguez v. INS, 52 F.3d 238, 239 (9th Cir. 1995) (noting, “That arson necessarily involves moral turpitude is undisputed.”); Matter of S-, 3 I&N Dec. 617 (BIA 1949) (attempted arson is a CIMT) (distinguishing reckless conduct from intentionally setting a fire). However, arson of one’s own property may not be a CIMT. See, e.g., discussion in Rosa Pena v. Sessions, 882 F.3d 284 (1st Cir. 2018). 

But advocates have a strong argument that “willfully and maliciously” causing a fire under PC 451 is not a CIMT. In finding that PC 451 is a general intent crime, the California Supreme Court stated that willfully under California law “implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”

The terms ‘willful’ or ‘willfully,’ when applied in a penal statute, require only that the illegal act or omission occur ‘intentionally,’ without regard to motive or ignorance of the act’s prohibited character.” “Willfully implies no evil intent; ‘ “it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.” The use of the word “willfully” in a penal statute usually defines a general criminal intent, absent other statutory language that requires “an intent to do a further act or achieve a future consequence.”

People v. Atkins (2001) 25 Cal. 4th 76, 85 (citations omitted)

Regarding “maliciously,” as discussed above, in Togonon v. Garland, 23 F.4th 876 (9th Cir. 2022) the Ninth Circuit held that “maliciously” in PC 451 includes an act that a reasonable person would have known would have the natural and probable consequence of causing property to burn.  Negligence is not a CIMT. Therefore PC 251 intent is overbroad and indivisible and should not be held a CIMT.  See also J-A-M-B-, AXXX XXX 662 (BIA July 12, 2018) (unpublished) (arson under Cal. Penal Code section 451(d) is not divisible and categorically not a CIMT because it is a general intent crime that does not require an intent to cause injury or damage) (Grant, Kendall Clark, Guendelsberger).

Section 452 involves reckless conduct. Under PC 450(f), for this purpose recklessness also employs the “reasonable person standard,” and should not be a CIMT.

PC 451 as arson. 18 USC 844(i) supplies a generic definition of arson, per 8 USC 1101(a)(43)(E)(i). The Ninth Circuit held that PC 451(b) is not arson because the mens rea does not match 844(i), in Togonon v. Garland (2022). Because PC 451(a)-(e) all have the same mens rea, no conviction under 451 should be an AF under Togonon. 

18 USC 844(i) prohibits “maliciously” damaging property etc. by fire or explosive. In Togonon the Ninth found that “maliciously” here means damaging the property either intentionally, or with conscious disregard of a known risk, i.e., recklessly. The court found that in PC 451 requires a willful act, but does not require a conscious disregard of a known risk of damage (despite the term ‘malicious’ in the statute). Instead the court found that PC 451 requires awareness of circumstances where a reasonable person would have known that the natural and probable consequence would cause damage to property. Therefore 451(b) is not an AF as arson.

PC 452 as arson. Federal arson requires maliciously causing damage, meaning either an intentional causation of damage, or a subjective awareness and conscious disregard of the known risk of causing damage. See definition of arson above. PC 452, however, requires recklessly causing a fire, but does not require a subjective awareness of the risk of damage from the fire. Thus, PC 452 is overbroad and should never be arson. However, ICE could contest this, and PC 452 could use additional analysis to strengthen the defense. See endnote.

PC 451, 452 as a COV. A COV, defined at 18 USC 16(a) to include using force against person or property of another, is an AF if a year or more is imposed. 8 USC § 1101(a)(43)(F). PC 451, 452 were considered COVs under 18 USC 16(b), but 18 USC 16(b) has been held unconstitutional. Now only 18 USC 16(a) defines a COV. 

There is no precedent on 451, 452 as a COV under 16(a). Because they involve a mens rea less than recklessness when it comes to the risk of causing damage, and recklessness itself is not a COV, arguably neither offense has the required use of intentional, aggressive force against person or property. See above endnote and see discussion of COV at PC 207. 

Both 451 and 452 can include burning the person’s own property. That is not a COV under 18 USC 16, which only covers the “property of another.”

Alternatives: To more surely avoid an AF as arson, see felonies such as PC 459 1st or 2nd degree, or 594, which may take 1 year or more without being an AF. If needed couple with H&S C 13001 (negligence), PC 136.1(b)(1) consecutive (8 months sentence), 370. Also consider Pub. Res. Code §§ 4421, 4422, 4427, 4435.

PC 451, 452 as CIMT. An offense is a CIMT if it has as an element either evil intent, or recklessness defined as conscious disregard of an imminent risk of causing death or serious injury. Matter of Leal (BIA 2012). Because courts generally have held that arson is a CIMT, defenders should conservatively assume 451 and 452 will be CIMTs, but removal defense advocates have arguments.

While PC 451 requires the person to “maliciously” cause a fire, here maliciously means merely to knowingly and unlawfully ignite a fire, without evil intent (even intent to vex or annoy) or desire to cause harm or gain benefit, but under circumstances where a reasonable person would have known of the risk that it could cause harm, i.e., a standard like criminal negligence. For example, teenagers who started a fire when they set off a cherry bomb near a dry hillside were guilty of PC 451, when they did not know that this risked a damaging fire, but a reasonable person would have known. 

PC 452 prohibits setting the fire “recklessly,” which here means accidentally, but with a conscious disregard of a substantial risk in a gross deviation from a reasonable person standard. P.C. § 450(f). This is not a CIMT under Leal because it does not involve conscious disregard of a subjectively known risk of harm (as opposed to igniting a fire), or if it does, because the harm risked is not imminent death or serious injury. But this may be contested. See above endnote.

1040
PC 453

Possess flammable material with intent to burn

Should not be an AF, but try to get less than 365. See Advice.

Assume a CIMT

No other removal ground.

PC 453

AF: It appears that possession or disposal of flammable materials is not analogous to an offense at 8 USC 1101(a)(43)(E)(i) and thus is not an AF as arson.

It should not be an AF as a COV because, among other reasons, possession with intention is not equivalent to attempt,110PC 453, possession of flammable material with intent to burn structure or property, is not attempted arson. See People v. Morse, 116 Cal. App. 4th 1160, 1165–66 (2004). Likewise it could not be an attempted crime of violence. See also PC 455, attempted arson. use, or threat of force, which is required in 18 USC 16(a). But to surely avoid an AF as a COV, get 364 days or less on each count. See § N.4 Sentence. See also PC 451, as well as alternatives such as, e.g., PC 32, 459, 594, which could be coupled with H&S C 13001.

 

 

1050
PC 459, 460(a)

Burglary, first degree (residential)

Not a COV or AF under any category.111Burglary as an AF. A burglary conviction potentially can be an aggravated felony under any of three categories, but under the categorical approach California burglary (Pen C § 459) does not come within any of these categories and never is an AF, regardless of whether it is first degree (Pen C § 460(a), residential) or second degree (§ 460(b), commercial) burglary. (See ILRC, How to Use the Categorical Approach Now (2021)  more information.) Two key factors distinguish California burglary from some other burglary statutes and decisions holding that those offenses are aggravated felonies: California burglary includes a lawful entry and is not divisible between lawful and unlawful entry, and California burglary is not divisible as to the intended offense.

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,112California burglary (Pen C § 459) is never a CIMT, regardless of whether it is first degree (Pen C § 460(a), residential) or second degree (Pen C § 460(b), commercial) burglary. Two key factors distinguish California burglary from some other burglary statutes and decisions holding that those burglary statutes are CIMTs: California burglary includes a lawful entry and is not divisible between a lawful and unlawful entry, and California burglary is not divisible as to the intended offense. (See ILRC, How to Use the Categorical Approach Now (2021)  more information.) 

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.

PC 459, 460(a)

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, 594113Felony vandalism can be the intended burglary offense. People v. Farley (2009, Cal) 46 Cal 4th 1053. or other felony non-CIMT, and/or state that it was a lawful entry.

460(a) does not meet the BIA’s specific definition for when res burglary is a CIMT, because that requires an unlawful entry. However, in case the BIA someday changes its definition, if avoiding a CIMT is absolutely critical one could seek a plea other than 460(a). See CIMT endnote.

1060
PC 459, 460(b)

Burglary, Second degree, (Commercial)

Never an AF under any category; see 460(a). But as always, best practice is to obtain 364 days or less on any single count if that is possible.

Never a CIMT regardless of intended offense; see 460(a). See Advice.

No other removal ground.

PC 459, 460(b)

Very good immigration plea, regardless of record of conviction (ROC). Still, for extra protection against wrongly filed immigration charges, one can create a good ROC by identifying lawful entry or, especially, intent to commit a non-CIMT.

DACA. Misd burglary is a “significant misdemeanor.” See PC 25400.

Prop 47: If offense was entering open business with intent to steal $950 or less, see 459.5. However, for CIMT purposes this may not be as secure as 459. Also immigration authorities may assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.114See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014).

1070
PC 459.5

Shoplifting

Not AF (6-month max)

Not CIMT per Ninth Circuit but plead to property “intended to be taken” if possible and also see Advice. PC 459 is more secure for CIMT purposes.

No other removal ground.

PC 459.5

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.”115See discussion of Hernandez-Cruz v. Holder, 651 F.3d 1094, 1104 (9th Cir. 2011) at § 460(a) CIMT endnote, above. Hernandez-Cruz specifically held that Pen C § 460(b) is not a CIMT even if the intended offense is larceny, because burglary includes a mere lawful entry into a commercial building with bad intent. Section 459.5 has the same elements, at least with intent to take property as opposed to having taken property. Further, § 459.5 should not be held divisible between intent to take and taking, as there is no evidence that a jury must decide unanimously between those two options in order to find guilt. See more on the categorical approach at ILRC, How to Use the Categorical Approach Now (2021).

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.

1080
PC 466

Possess burglary tools, intend to enter building, etc.

Not AF (lacks the elements, and 6-month max misd).

Should not be CIMT. See Advice

No other removal ground.

PC 466

CIMT: Intent to unlawfully enter any building, vehicle, etc., with no element regarding intent to commit a further crime is not a CIMT.116See, e.g., Matter of M, 2 I&N Dec. 721, 723 (BIA 1946) (mere unlawful entry is not a CIMT; it must be unlawful entry with intent to commit a CIMT), and discussion of that case in Matter of Louissaint, 24 I&N Dec. 754, 755-56 (BIA 2009) (adding to that rule by holding that an offense with elements of unlawful entry into an occupied dwelling with intent to commit a crime also is a CIMT). Section 466 does not require intent to commit any crime, much less a CIMT, or to enter a particular place, much less an occupied dwelling.

1090
PC 470, 470a

Forgery

Get 364 or less on each count to avoid AF as forgery, or counterfeiting.117Conviction for forgery or for counterfeiting is an aggravated felony if a sentence of a year or more is imposed on any single count. See 8 USC § 1101(a)(43)(R), INA § 101(a)(43)(R) and see § N.6 Aggravated Felonies. Immigration counsel can investigate whether § 470 might be overbroad compared to the generic definition. However, in a split opinion the Ninth Circuit held that § 470a is an aggravated felony as “forgery” if a year or more is imposed, including if the offense involves photocopying a drivers’ license with intent to commit forgery. See Escobar Santos v. Garland, 4 F.4th 762 (9th Cir. 2021). See § N.4 Sentence.
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, 496.

No other removal ground.

PC 470, 470a

To surely avoid AF for 470 or 470a, D must avoid 1 yr imposed on any single count or loss to victim/s exceeding $10,000.Either one will create an AF. If either one of these is present, try to plead to a different offense such as PC 487. See PC 484, below. Otherwise, consider these strategies.

AF with $10k loss. A crime involving fraud or deceit is an AF if loss to victim/s exceeds $10k. To avoid this, plead to 487 grand theft, defined by PC 484. If that is not possible, plead to one count 470 and state in the plea agreement that the loss to the victim/s was, e.g., $9k. If restitution of more than $10k must be ordered at sentencing, include a Harvey waiver and a statement (for immigration judge’s benefit) that the restitution is based on uncharged conduct or dropped counts. While there is no case on point, this follows Supreme Court statements.118Conviction of an offense that involves fraud or deceit is an aggravated felony if the loss to the victim/s exceeds $10,000. 8 USC 1101(a)(43)(M). The Supreme Court held that the amount of loss is a “circumstance specific” factor that does not come within the categorical approach, and that evidence from outside the reviewable record of conviction may be used to prove the amount. However, the loss amount must be tethered to the offense of conviction and cannot be based on acquitted or dismissed counts or general conduct. Nijhawan v. Holder, 557 U.S. 29, 42 (2009). If possible, defenders should supply both a Harvey waiver and spell it out by stating that additional restitution is based on dropped charges or uncharged conduct, because immigration officials may not be familiar with Harvey waivers. See further discussion of these issues in state and national Nijhawan practice advisories, by searching for Nijhawan at www.ilrc.org/crimes and www.nipnlg.org.

AF with 1 year. To craft a disposition where a sentence of less than 1 yr is imposed for immigration purposes, but the person actually serves more than 1 year, see § N.4 Sentence.

But if 1 yr imposed cannot be avoided, go to 484, 487, 475(c), 529(a)(3), 530.5, or other offenses involving fraud or deceit that do not involve a false instrument and that can take a year. For past convictions, imm counsel can investigate arguments that PC 470 is broader than generic forgery or counterfeiting. That will not work if there also is $10k loss.

Prop 47: Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.119See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014).

1100
PC 471.5

Falsification of medical records

May be AF as crime of deceit if loss to V exceeds $10k.

CIMT because it involves fraud

No other removal ground.

PC 471.5

If the loss may exceed $10k, see discussion at PC 470.

1110
PC 475(c)

Possess “real or fictitious” check, etc. with intent to defraud

Can avoid AF as forgery; see Advice. Yes, AF as fraud if loss exceeds $10k; see Advice for PC 484.

CIMT because fraud

No other removal ground.

PC 475(c)

AF as Forgery. The best defense is to get 364 days or less on each count. But if 1 year was or must be imposed, note that Ninth Cir held 475(c) is broader than forgery because 475(c) includes use of “real” document.120Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 8767 (9th Cir 2008). In case 475(c) ever is held divisible  between real or fictitious documents, plead to use of “real” doc with intent to defraud. That is not an AF in the Ninth Cir even with 1 yr imposed.

1120
PC 476(a)

Forged check or monetary instrument

AF if loss to the victim/s exceeds $10,000; see Advice.

AF as forgery if 1 yr or more; get 364 or less on each count.121Morales-Alegría v. Gonzales, 449 F.3d 1051, 1056 (9th Cir. 2006).

CIMT. See 529(a)(3), 530.5, to try to avoid CIMT.

No other removal ground.

PC 476(a)

To avoid an AF based on conviction of a fraud or deceit offense where loss to the victim > $10k, see PC 484. If that is not possible, follow Advice for PC 470.

Prop 47:  Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.122See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014).

1130
PC 484, 487, 490, 666

Theft (petty or grand)

Section 484 provides the definition for PC 487, 490, and 666. This section will refer to a “PC 484” to mean any of these offenses.

PC 484 is extremely useful because it can take a year or more without becoming an AF as theft.  It also can take a loss to the victim/s exceeding $10k without becoming an AF as fraud or deceit.

But PC 484 cannot take both 1 yr and loss > $10k on a single count.  Where both factors are present, get expert help to craft a plea, probably to multiple offenses, and see Advice.

A current plea to 484 is a CIMT. To avoid a CIMT, consider PC 459, 529(a)(3), 530.5 (which all can take 1 year without becoming an AF), or PC 496, VC 10851 (which cannot).

For past convictions, there is a strong argument that a 484 conviction from before November 16, 2016 is not a CIMT, although unfortunately it will require an en banc decision to confirm this. See discussion of Silva v. Barr.123While PC 484/487 has long been held a CIMT, this might change for some past convictions. The panel in Silva v. Barr, 965 F.3d 724, 731 (9th Cir. 2020), withdrawn and superseded by Silva v. Garland, 993 F.3d 705 (9th Cir. 2021), stated that it would have held that convictions of PC 487 from before Nov. 16, 2016 are not CIMTs, except that it is bound by prior, incorrect Ninth Circuit precedent to the contrary. The court stated, “But we are nevertheless bound by our precedent… Only an en banc court has the power to fix these errors.” Id. at 717. However, Mr. Silva’s petition for rehearing en banc was denied, so the legal issue is left in limbo.

The argument is: 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, 993 F.3d at 714-716.

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 it did not have the power to correct the errors; an en banc decision is required. Immigration advocates should continue to raise the issue.

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.

PC 484, 487, 490, 666

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.124The Ninth Circuit held that no conviction of Pen C § 484/487 theft is an AF as “theft” even if a 1-year sentence is imposed, because the § 484 definition also includes fraud, which does not become an AF if 1 year is imposed, and § 484 is not divisible between theft and fraud. See Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), and see ILRC, How to Use the Categorical Approach Now (2021) for more information on divisibility. Also, section 484/487 is not an AF as fraud even if loss to the victim/s exceeds $10,000.

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).

Note on loss exceeding $10k: Officials are not limited by the categorical approach, and to some extent can use evidence from outside the ROC, to prove the $ amount of loss. If one must plead to an offense involving fraud or deceit where the loss actually exceeded $10k, and/or where restitution of more than $10k is ordered, see discussion at PC 470 for how to control the record. But the most secure way to avoid the $10k problem is the one described above: plead to PC 484-type theft offense, rather than fraud or deceit, so that the amount of loss is irrelevant.

1131
PC 485

Theft by misappropriation

Get 364 or less on each count, to avoid AF as theft. If that is not possible, see Advice

Arguably not a CIMT because includes intent to temporarily deprive; see discussion in unpublished Ninth Circuit case.125In 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.

PC 485

AF as theft: Imm advocates can explore argument that this is not “theft” because it does not involve stealth, and thus should not be an AF even with 1 yr sentence. But defenders should not rely on this untested argument and should seek, e.g., 459, 487, 530.5 if more than 364 days will be imposed on a single count. Note that 487 is a CIMT, while 530.5 will be an AF if the loss to victim/s exceeds $10,000.

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

1140
PC 490, 490.1

Petty theft

(misd or infraction)

See PC 484, above

Not AF.

Assume CIMT for a new conviction, but arguably not a CIMT if conviction occurred before Nov. 16, 2016.

See Advice re infractions

No other removal ground.

PC 490, 490.1

CIMT. While a Calif infraction arguably is not a “conviction” for imm purposes, there is no ruling and defenders must conservatively assume that it will be treated as one. See 11358. If 490.1 is treated as a conviction, this is a CIMT.

To avoid a CIMT, see PC 459, 496, VC 10851. Also see discussion at PC 484.

1160
PC 496, 496a, 496d

Receiving stolen property, or receiving stolen vehicle

Get 364 or less on each count to avoid AF.126The 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.

PC 496, 496a, 496d

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.127The 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 ILRC, How to Use the Categorical Approach Now (2021) for more information.) 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:  Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.128See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014).

1170
PC 498(b), (d)

Obtaining utility services without intent to pay

Might be charged as an AF, so get 364 or less on each count and avoid if loss exceeds $10k but see Advice for defenses.

Assume a CIMT as an unlawful taking with intent to deprive permanently

No other removal ground

PC 498(b), (d)

AF as theft if 1 year imposed: Arguably theft of utility services does not meet the generic definition of theft in the Ninth Circuit, which is a taking of property, not of services.129The Ninth Circuit has long held that theft of labor or services does not meet the generic definition of “theft.” Theft requires a taking of property. See, e.g., Lopez-Valencia v. Lynch, 798 F.3d 863, 869 (9th Cir. 2015) (noting that “a defendant may be convicted of ‘theft’ if six jurors believe that he committed larceny (which is a form of theft that meets the federal generic definition) and six jurors believe that he committed theft of labor (which is not).”). But try to avoid the issue by getting 364 or less on each count, or else see PC 487.

AF as deceit with loss exceeding $10k. Arguably this is not deceit (a taking with consent) but is theft (a taking without consent, by stealth). But best practice if loss exceeds $10k is to avoid the risk and consider PC 487.

1180
PC 499, 499b

Joyriding; Joyriding with Priors

Get 364 or less on each count to avoid AF as theft. See § N.4 Sentence.

Not CIMT because intent to temporarily deprive

No other removal ground.

PC 499, 499b

If 1 yr will be imposed on a single count, consider PC 484 designating a fraud offense. See also VC 10851, but this is not as safe as PC 484.

1190
PC 528.5

Impersonate by electronic means, to harm, intimidate, defraud

AF as fraud if loss exceeds $10k. Consider plea to 484/487, and see Advice to 470, above.

Not a COV, plus it has a maximum 364-day sentence.

Intent to defraud is a CIMT, but intent to harm should not be.

See Advice.

Not a COV because the harm need not be force. Therefore, it cannot be a deportable crime of DV.

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

PC 528.5

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.130See discussion In re Rolando S., 197 Cal. App. 4th 936 (Cal. App. 5th Dist. 2011).

But even if a prior plea was to fraud, imm advocates should assert that 528.5 is not a CIMT for any imm purpose because it is not divisible between fraud and harm, as there appears to be no authority that a jury is required to decide unanimously between those alternatives to find guilt. See  ILRC, How to Use the Categorical Approach Now (2021)

1210
PC 529.5(c)

Possess document purporting to be gov’t-issued ID or DL.

Not AF

Should not be a CIMT; no intent to defraud

No other removal ground.

PC 529.5(c)

Good alternative to more serious identity theft charge.

1230
PC 530.5(a), (d)(2)

Obtain any personal identifying info and use for “any unlawful purpose, including “to obtain credit, goods, services, or medical information” (part (a)) or

Transfer any such information, knowing transferee will use for unlawful purpose (part (d)(2))

Not AF based on 1 year imposed, but 364 is always best. See Advice.

Assume AF if loss to victim/s exceeds $10,000. To avoid that, consider plea to 484/487 and see Advice to 470, above.

Not a CIMT. Ninth Circuit held it is not, but in at least one case, USCIS wrongly asserted it is divisible. See Advice re best practice for ROC.

No other removal ground.

PC 530.5(a), (d)(2)

AF with 1 yr. Conviction of theft, forgery, or counterfeiting is an AF if 1 yr or more is imposed. These are not elements of 530.5 and it can’t properly be held an AF under any of these categories regardless of underlying conduct.131If a sentence of a year or more is imposed, “theft” is an AF under 8 USC § 1101(a)(43)(G), and “forgery” and “counterfeiting” are AFs under § 1101(a)(43)(R). Under the categorical approach, § 530.5(a) lacks elements required for the generic definition of these offenses and thus cannot be an AF under any of these categories. (See ILRC, How to Use the Categorical Approach Now (2021) for more information.) “Theft” requires a taking by stealth, without consent. See discussion at Pen C § 484. “Forgery” and “counterfeiting” require, at a minimum, use of a written instrument. But to avoid a possible wrongful AF charge, keep sentence under 1 yr for each count and/or keep conduct involving forgery, counterfeiting, or obtaining goods out of the ROC. If D must take 1 yr or more, however, 530.5 is a reasonable choice.

CIMT. The Ninth Circuit held that the minimum conduct to commit 530.5(a) or (d)(2) is not a CIMT because it involves using the info for “any unlawful purpose” with no requirement of harm, loss, or intent to defraud, for example, working under another person’s name. Under the categorical approach, the sections cannot be held divisible as to the type of unlawful conduct.132Section 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 ILRC, How to Use the Categorical Approach Now (2021) for more information) 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, 579 U.S. 500, 518 (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.

1240
PC 530.5(c), (d)(1)

With intent to defraud, uses another’s unlawfully obtained personal identifying information

AF if loss to victim/s exceed $10,000.

Not AF by 1 yr imposed.

See Advice.

Yes, CIMT because intent to defraud.

No other removal ground.

PC 530.5(c), (d)(1)

The discussion above of 530.5(a) as a potential AF based on a sentence of 1 yr or more applies to 530.5(c), (d).

If the loss to the victim/s exceeds $10k, plead to PC 487, 459. If that is not possible, see discussion at PC 470 for how to create an ROC here to avoid an aggravated felony.

1250
PC 532(a)

Fraudulently obtain money, credit, etc.

Yes, AF if more than $10k. See PC 487, 470.

Try to get 364 or less, but see Advice if 1 yr or more was imposed

Yes, CIMT because fraudulent intent.

Consider 529(a)(3), 530.5(a)

No other removal ground.

PC 532(a)

AF and 1 year. Forgery, counterfeiting, theft with 1 yr or more imposed is an AF. These are not elements of 532(a), so no 532(a) conviction should be held an AF based on a 1-yr sentence. But best practice is to try to keep such conduct out of the ROC and/or get 364 days or less on any single count, to further protect defendant. See § N.4 Sentence.

1260
PC 532a(a)(1)

False financial statements in writing

AF if more loss to victim’s exceeds $10k. See 487 and discussion at 470.

Defenders assume CIMT per Ninth Circuit. Immigration advocates, see Advice.

No other removal ground.

PC 532a(a)

CIMT. Ninth Cir held this is a CIMT as it amounts to fraud, so defenders must assume this is the case. Imm advocates may explore arguments against this, which were brought up in the panel’s dissent.133Although the statute does not mention fraud, the Ninth Circuit held that because 532a(a)(1) requires a knowing false representation in order to gain something of value, fraud in fact is an element. Tijani v. Holder, 628 F.3d 1071, 1078 (9th Cir. 2010), distinguishing § 530.5(a), which does not have an element of fraud, from § 532(a)(1), which it found to have such an element.

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.

1270
PC 550(a)

Insurance fraud

See §532a(1)

See § 532a(1)

No other removal ground.

PC 550(a)

See PC 532a(1)

1280
PC 591

Tampering with or obstructing phone lines, malicious

Not AF because not COV: it need not involve force or threat. See endnote at CIMT.

Should not be CIMT but try to plead to mild acts and intent to annoy.134For 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).

PC 591

Can be good alternative to avoid deportable stalking or DV offense.

While it always is best to get 364 days or less, this wobbler is not a COV and therefore is a good substitute plea to take 1 yr or more.

1290
PC 591.5

Tamper with cell phone to prevent contacting law enforcement

Not AF: Not a COV (and has 6-month maximum sentence)

Conservatively assume CIMT, but immigration counsel may argue against that.

Not COV so not deportable DV offense (but as always, keep ROC clear of threats, violence).

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

PC 591.5

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).135No substantive cases define the offense. Immigration counsel may argue that this is analogous to Pen C § 32 for purposes of CIMT determination in the Ninth Circuit. It requires no violence or evil motive.

1300
PC 594

Vandalism, Malicious Mischief

(b)(1) at least $400 damage

(b)(2) less than $400 damage

None should be COV, but (a)(1) is safest.136See 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.

PC 594

CIMT. Ninth Cir held similar statute punishing damage over $250 (in 1995 dollars) is not CIMT.137See, 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 (part of the definition of “malice”).

Gangs and vandalism. The BIA held that 594 with a gang enhancement is a CIMT. The Ninth Cir reversed.138The 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.139Felony 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.

1310
PC 597(a), (b)

Torturing, abusing, animals (a)

Severely neglecting animals (b)

Appears not to be a COV, although as always it is best to get 364 or less. See Advice.

597(a). Assume this is a CIMT.140See Matter of Ortega Lopez, 27 I&N Dec 382 (BIA 2018) The Board held that commercial dog fighting, causing animals to suffer and die for entertainment, in violation of 7 USC 2156, a federal dog-fighting law, is a CIMT because it causes animals to suffer and die for entertainment. The Ninth Circuit deferred. Ortega-Lopez v. Barr, 978 F.3d 680, 681 (9th Cir. 2020). 597(b). BIA states recklessness is a CIMT if it is a conscious disregard of known risk of imminent death or severe injury to person. 597(b) can involve gross negligence, so it should not be held a CIMT.141Moral turpitude has been found to inhere in an offense if it has as an element a conscious disregard of a known risk that causes, or creates the “imminent risk” of causing, death or very serious bodily injury. See e.g., Matter of Franklin, 20 I&N Dec. 867, 870-71 (BIA 1994) (conscious disregard resulting in manslaughter), Matter of Leal, 26 I&N Dec. 20, 24-26 (BIA 2012) (conscious disregard causing a “substantial risk of imminent death”).  PC 597(b) involves criminal negligence. People v. Speegle (1997), 53 Cal. App. 4th 1405, 14111412. The test for this is whether a reasonable person would have been aware of the risk involved; it can be found even when a defendant acts with a sincere good faith belief that his or her actions pose no risk. People v. Rippberger (1991), 231 Cal. App. 3d 1667, 1682, cited in Speegle at 1412.

No other removal ground.

In unpublished decision, Ninth Cir upheld BIA finding that applicant’s 597(a) conviction was of a “particularly serious crime” and thus a bar to asylum, withholding.142See Madrid v. Holder, C.A.92013, 541 Fed.Appx. 789, 2013 WL 5530009.

PC 597

COV. 18 USC 16(a) includes force against “the person or property of another,” but not one’s own property. PC 597(a) is not divisible between animals that are one’s own versus another’s property.

PC 597(b) is not a COV because it involves neglect, and the Supreme Court in Borden held that even reckless conduct is not a COV. See endnote on 597(b) as a CIMT and see further discussion of COV at 207.

1320
PC 597.5

Participating in or being a spectator at dog fights

See PC 597

Assume 597.5(a)(1) is a CIMT, because BIA and 9th Cir. held similar federal offense is CIMT.143See Matter of Ortega Lopez, 27 I&N Dec 382 (BIA 2018); Ortega-Lopez v. Barr, 978 F.3d 680, 681 (9th Cir. 2020) (BIA held commercial dog fighting in violation of 7 USC 2156(a)(1), causing animals to suffer and die for entertainment, is a CIMT; Ninth Circuit deferred).

See advice for (a)(3), (b).

See PC 597.

PC 597.5

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.144In Matter of Ortega Lopez, supra, the BIA declined to address whether being a spectator at a dog fight, under § 2156(a)(2), also is a CIMT. Matter of Ortega Lopez, 27 I&N Dec 382, 389-98 (BIA 2018). It noted that dogfighting “desensitizes spectators to brutality and violence and teaches ‘that inflicting pain is an acceptable form of amusement.’” Id. at 388.

1330
PC 602

Trespass

Not AF (for one thing, 6-month max sentence)

Should not be CIMT

See Advice.

See PC 594.

602(l)(4) (discharging firearm) is not deportable firearm offense due to antique firearms exception (see PC 417), but still best to avoid.

PC 602

See PC 602.5, below.

Misd involving firearms is a “significant misdemeanor” and bar to DACA, but 1203.4 may work. See PC 25400.

1340
PC 602.5

Trespass, residence

Not AF.

Not CIMT.

No other removal ground.

PC 602.5

1350
PC 646.9

Stalking

Try to get 364 or less, but even with a year it should not be held an AF as COV. Plead to harassing rather than following. See Advice

The Ninth Circuit held it is a CIMT.145Orellana 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.

PC 646.9

See endnote for citations and further discussion of COV and stalking deportability ground.146For 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.

1360
PC 647(a)

Disorderly: lewd or dissolute conduct in public

Not AF even if ROC shows minor involved147An age-neutral offense never is the aggravated felony sexual abuse of a minor. See, e.g., discussion in Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. 2012), and see § N.10 Sex Offenses. (but don’t let ROC show this)

Yes, held CIMT, although imm counsel can argue against this. Consider PC 370. See Advice.

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

PC 647(a)

AF: Good alternative to sexual conduct near/with minor

CIMT Older BIA decisions finding CIMT were influenced by anti-gay bias. Imm attys will argue they should not be followed,148However, Nunez-Garcia, 262 F. Supp. 2d 1073 (CD Cal 2003) re-affirmed these cases without comment; see cites in that opinion. but until there is precedent this presents a CIMT risk. Instead see 647(c), (e), (h).

Adam Wash Act. If V under 18, this might trigger Adam Walsh provisions that can block a USC or LPR from obtaining immigration status for family in the future. See PC 288(a).

1370
PC 647(b)

Disorderly: Prostitution

Not AF

Always a CIMT, whether prostitute or customer.149Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012). To avoid, see 370, 647(a), (h) or “residing” under 315.

Inadmissible for “engaging in prostitution” if sufficient evidence the person engaged in an ongoing practice of offering sexual intercourse for a fee.

Try to plead to a different offense; if that is not possible, plead to offering lewd act for a fee. See Advice.

Victims of human trafficking. If the defendant might be a victim, see discussion at Advice to H&S C 11358.

PC 647(b)

For more information and citations on the prostitution inadmissibility ground, see endnote.150The 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.

1380
PC 647(c), (e), (h)

Disorderly: Begging, loitering

Not AF.

Not CIMT.

No other removal ground.

PC 647(c), (e), (h)

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

1390
PC 647(f)

Disorderly: Under the influence of drug, CS, alcohol,

Not AF.

Not CIMT.

This should not be a CS offense, but best plea is to alcohol or “drug.” See Advice.

PC 647(f) should not be held divisible between alcohol, drug, and CS.151See discussion of divisible statutes at ILRC, How to Use the Categorical Approach Now (2021). See CALCRIM 2966, which does not require a jury to decide unanimously between alcohol, drugs, or controlled substances. But to provide extra protection for D, plead specifically to alcohol or if needed to “drug” rather than CS.

1400
PC 647(i)

Disorderly: “Peeping Tom”

Not AF

Should not be CIMT; See Advice

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

PC 647(i)

CIMT: Should not be CIMT because offense is completed by peeking, with no intent to commit further crime152In re Joshua M., 91 Cal. App. 4th 743 (Cal. App. 4th Dist. 2001). The purpose of the law is “not to protect the property and safety of householders; it is designed to control ‘peeping Toms’ and other persons of that type.” People v. Lopez (1967) 249 Cal.App.2d 93, 103. but there is not case on point.

1410
PC 647.6 (a)

Annoy, molest “child,” defined as underage 18

Not AF as sexual abuse of a minor (SAM) in Ninth Circuit. Unlikely, but possible, to be held SAM elsewhere.

See Advice, and See § N.10 Sex Offenses.

Not CIMT in Ninth Circuit.

Does not appear to be being charged as child abuse, but no precedent.

Imm counsel can argue against this due to no element of potential harm, Ninth Circuit rulings that it is not abuse, and fact that it includes persons up to age 17. But to avoid the problem, consider alternate plea. See Advice.

PC 647.6(a). See citations and analysis.153The 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 ILRC, How to Use the Categorical Approach Now (2021) for more information.

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, 581 U.S. 385 (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 nonexplicit, nonharmful conduct in the ROC, or keep ROC vague, in case authorities wrongly look to ROC to define the offense.

Age-neutral offense to prevent deportable child abuse, SAM: The sure way to avoid any threat of SAM (outside the Ninth Circuit) or child abuse is a plea to age-neutral offense like 243, 236, 646.9, 647, 459, etc. In addition, while it should not be legally necessary, keep the ROC clear of reference to a minor V. See Advice to 243(a). Or, consider 273a(b), which does not have immigration consequences.

Possibly a “significant misdemeanor” for DACA. See PC 25400.

1420
PC 653f(a), (c)

Solicitation to commit variety of offenses

Not AF as COV.

See Advice regarding other AFs.

Yes, if the conduct solicited is a CIMT.

Not COV so not a deportable DV offense.

PC 653f(a), (c)

The Ninth Cir held soliciting per 653f(a) (violent and theft offenses) and (c) (rape and other sex offenses) are COVs under 18 USC 16(b), but not under 16(a). Because the Supreme Court struck down 16(b) as void for vagueness, these offenses no longer are COVs.154Prakash v. Holder, 579 F.3d 1033 (9th Cir. 2009) (Pen C § 653f(a) is a COV under 18 USC § 16(b) but not under § 16(a)). The court acknowledged in dicta that the offense would not be an aggravated felony under 1101(a)(43)(U). Prakash at 1039.

Solicitation to commit rape ought not to be held an AF as rape because the AF definition includes attempt and conspiracy, but not solicitation, to commit an AF. See 8 USC 1101(a)(43)(U) and above endnote.

1430
PC 653f(d)

Solicitation to commit drug offense such as 11352, 11379, 11391.

Solicitation to commit a drug offense is not a drug trafficking AF, in cases arising within the Ninth Circuit only.

Outside the Ninth Circuit it can be an AF.

Solicitation will take on the CIMT quality of the offense solicited.

The BIA has held that selling or giving away drugs is a CIMT.

See Advice regarding possible defenses against an inadmissible and deportable CS conviction.

PC 653f(d)

Deportable/ Inadmissible CS conviction. Two possible defenses. First, this plea can use the unspecified or nonfederal substance defenses. See 11377. Also, there is an argument that 11391 is not a CS offense. If that is true, soliciting it is not a CS offense. See 11391.Second, imm counsel can argue that this is not a deportable CS offense because it is generic solicitation.155See Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009), stating in discussion that because § 653f is a generic solicitation statute that pertains to different types of offenses, as opposed to a statute passed primarily to restrict controlled substances, it is not an offense “relating to” a controlled substance. But see Arriola-Carrillo v. Holder (9th Cir. 2015) WL1346157 (unpublished) which assumed that § 653(f) is a CS conviction and found that Lujan/Nunez does not apply to § 653f because it is not a lesser included offense of possession. For information on Lujan/Nunez, see H&S C § 11377 in chart.

Trafficking penalties. Beyond being an AF, any offense that involves trafficking (commercial element) is a “particularly serious crime,” bad for asylees and refugees. It also can make D inadmissible by giving gov’t “reason to believe” D is involved in trafficking. See 11379.

1440
PC 653k Repealed See PC 21510, 17235

Possession of illegal knife

Not AF

Not CIMT

Not deportable offense

PC 21510, 17235

This is a good immigration plea.

1450
PC 653m (a), (b)

Electronic contact with

(a) obscenity or threats of injury with intent to annoy; or

(b) repeated annoying or harassing calls.

Not AF.

(only a 6-month maximum sentence.)

(a) should not be CIMT b/c minimum conduct (intent to annoy) is not CIMT. 156Section 653m(a) should not be a CIMT because the minimum conduct to commit the offense is an intent to annoy, and may be committed by using obscene language, which has been defined as “offensive to one’s feelings, or to prevailing notions of modesty or decency; lewd.” People v. Hernandez (1991) 231 Cal.App.3d 1376. The statute should not be divisible as a CIMT because even if the offense involved a threat of injury, the mens rea required is an intent to annoy. Id. at 1381.

For (b), to avoid possible CIMT charge plead to making calls with intent to annoy.

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

See Advice for how to use this to avoid other DV deportation grounds.

PC 653m(a), (b)

Good plea in a DV context.

Deportable DV crime: If DV-type victim, plead under (a) to obscene call with intent to annoy, or (b) two phone calls intent to annoy. State on the record that calls did not involve any threat of injury. Or if possible plead to non-protected victim, e.g., repeat calls to the ex-girlfriend’s new girlfriend (no threats; intent to annoy).

Deportable violation of DV protective order. Do not admit to violating a stayaway order in this or any other manner. Plead to new 653m offense rather than violation of an order. See discussion at PC 237.6, above.

Deportable stalking: Stalking requires a threat, although it does not require a DV relationship. Plead to conduct described above. See also 591 and 646.9, above.

1460
PC 664

Attempt

AF if attempted crime is an AF.

See Advice if offense involves deceit with potential loss >$10k

CIMT if attempted crime is CIMT

Carries consequences of the attempted offense

PC 664

AF. Attempt and conspiracy are bad pleas where fraud or deceit results in loss to victim/s exceeding $10k.157One defense to fraud/deceit with a loss exceeding $10,000 is to plead to a single count where loss was less than $10k, and at sentencing agree to restitution order of more than $10k with a Harvey To make it crystal clear to immigration judges, if possible, state that the additional payment is due to dropped charges and uncharged conduct. Avoid a plea to attempt or conspiracy, which may give DHS more opening to include the whole amount. Instead plead to straight theft, PC 487, w/ less than 1 yr, or see PC 470

1470
PC 666

Petty theft with a prior

Theft as defined by 484 is not an AF even if 1 yr imposed, or loss exceeds $10k, but avoid getting both 1 yr and loss > $10k. See PC 484.

Yes CIMT. See Advice

No other removal ground.

PC 666

CIMT: If there is a CIMT prior, such as any 484 offense, this will be the dangerous second CIMT conviction. To avoid that, consider plea to PC 459, 496, or VC 10851. For rules governing when CIMTs trigger a removal ground, see n. 3xx.

Prop 47 can reduce a qualifying prior 666 to misdemeanor. However, immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.158See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a) because federal law will not give effect to a state criminal reform statute that purports to retroactively change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. At the same time as pursuing that argument, seek PCR. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014).

1480
PC 1320(a)

Failure to appear for misdemeanor

Not AF. See Advice

Does not appear to be a CIMT

No other removal ground.

PC 1320(a)

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

1490
PC 1320(b), 1320.5

Failure to appear for a felony

AF even with 364 or less, as “FTA for felony.” See Advice.

Get 364 or less on each count to avoid AF as obstruction of justice.159Renteria-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.

PC 1320(b), 1320.5

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.160See 8 USC § 1101(a)(43)(Q), (T) and Renteria-Morales, supra, regarding the aggravated felony “failure to appear.”

Do not plead to FTA for a felony; plead to another substantive offense. Get postconviction relief for a prior conviction.

1500
PC 4573

Bring CS or paraphernalia into jail without permission

Appears not to be an AF because intent to distribute is not required, but 4573.5, .6 or .8. is far better.

Because the statute does not require intent to distribute, and permission could be granted, it ought not to be a CIMT. See 11377.

May be charged as deportable and inadmissible CS if federal CS is involved. While there are defenses, it appears that a plea to 4573.5, .6 or even .8 is far better.

PC 4573

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 4573.6.161Sections 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.

1520
PC 4573.5

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

Not an AF

Should not be a CIMT

No other removal grounds; see advice.

PC 4573.5

Not CS offense. Good alternative to 4573 and other offenses involving a CS. Try to plead to alcohol for extra safety, although that should not be necessary: 4573.5 prohibits alcohol or “any drugs, other than controlled substances,” where one court held “drugs” includes medicine such as antibiotics.162See, e.g., People v. Ortiz (1962) 200 Cal. App. 2d 250, 254 (“The word ‘drug’ as used in the code section in question, inasmuch as the Legislature did not specifically define the word in the section itself, must be understood in its ordinary and normal meaning, that is to say, medicines or the components thereof for internal or external use.” Ortiz found that unauthorized possession of Darvon (a sedative) and of Achromycin V (tetracycline, an antibiotic) met the definition of “drugs in any manner, shape, form,” under the former language of Pen C 4573.6. Currently, Pen C 4573.5 uses that same language, but with the explicit exclusion of controlled substances: “drugs, other than controlled substances, in any manner, shape, form.…”

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

1530
PC 4573.6

Possess CS’s in jail without permission

Not a CS offense, per Ninth Circuit. Even if it were, it should not be an AF.

Should not be a CIMT because it just involves possession without permission.

No other removal grounds, but see Advice.

PC 4573.6

Not CS offense. Ninth Circuit held PC 4573.6 is overbroad as a CS offense because it includes substances not listed in federal schedules, and it is indivisible, in US v Graves (May 2019).163The Ninth Circuit held that no conviction under 4573.6 is an offense relating to a federally defined controlled substance. U.S. v. Graves, 925 F.3d 1036 (9th Cir. 2019). See discussion of Graves in endnote to PC 4573, above. Thus no conviction is a deportable and inadmissible CS, at least within Ninth Circuit. Still, where possible keep ROC clean of reference to specific CS that is on a federal list.

1540
PC 4573.8

Possess drugs or alcohol or instrument to use them in jail

Not AF

As a regulatory offense (possess without permission), should not be a CIMT

Should not be a deportable or inadmissible CS offense, but for safety plead to alcohol or look at 4573.5, .6.

PC 4573.8

CS. The term “drugs” is not divisible, and read in conjunction with 4573.6, it should be interpreted to include medicine that is not a controlled substance similar to 4573.5. But 4573.5 is safer, unless one can plead to alcohol.

1550
Former PC 12021 (a) Repealed 1/1/12 See also current PC 29800, 30305

Drug addict, misdemeanant, or felon who possesses or owns firearm, ammunition

Possession by felon or addict is not an AF due to the antique firearms rule.164Conviction under § 12021 does not come within the firearms deportation ground because the statute reaches and has been used to prosecute antique firearms. U.S. v. Aguilera-Rios, supra. See further discussion at PC 29800.

Arguably not CIMT because simply owning a weapon (even up to a sawed-off shotgun) is not a CIMT.

Not deportable under the firearms ground due to antique firearms rule; see discussion at PC 12020, 29800.

.

1570
PC 12022 (a), (b), (c)

Sentence enhancement for carrying a firearm during a felony. See Advice for detailed description:

(a)(1), (c) should not be held a COV unless underlying felony is, but no there is no case on point.165For 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.166Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014) (the definition of “firearm” at § 12001(b) (now moved to § 16520(a)) that is used in § 12022(c) is overbroad because it includes antique firearms). Note that the definitions of “assault weapon” and “.50 BMG rifle” expressly exclude antique firearms.

PC 12022 is a sentence enhancement for carrying a firearm during the attempt or commission of a felony, including:

(a)(1) Principal (includes accomplices) armed with firearm;

(a)(2) Principal (includes accomplices) armed with machine gun, assault weapon, .50 BMG rifle;

(b) Personal use of deadly/ dangerous weapon;

(c) Personally armed w/ a firearm

AF: To avoid a possible AF as a COV, try to plead to simply possessing a weapon (including most firearms) which can take more than a year without being a COV; if needed plead to an additional offense involving actual violence with less than a year’s sentence. See § N.4 Sentence.

1580
PC 12022.1

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

Does not appear to add an AF-type element, but see Advice re increased sentence, which makes certain offenses become AFs.

Does not appear to be CIMT.

Does not trigger other removal grounds, but see Advice regarding sentence.

PC 12022.1

If sentence is imposed, this adds 2 years to sentence for underlying offense and requires all counts to be consecutive.  Can cause problems due to:

  • Immigration offenses that become an AF if a year is imposed, and
  • Inadmissible based on having a lifetime total of 5 or more years for two or more convictions
1590
PC 12022.7

Enhancement for inflicting GBI during commission of a felony

Not COV per se. But see Advice.

Not CIMT per se; does not turn a non-CIMT into a CIMT. See Advice

No other removal ground.

PC 12022.7

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.167See, e.g., discussion at People v. Poroj (2010)190 Cal. App. 4th 165, 166 (holding no mens rea requirement, distinguishing other cases holding general intent requirement). See also U.S. v. Ramos-Perez, 572 Fed.Appx. 465 (9th Cir. 2013)(unpublished), distinguishing prior version of 12022.7, which requires specific intent with current version, which does not. However, in U.S. v. Perez, -F.3d- (9th Cir. July 11, July 25, 2019), a panel found that 243(d), battery that results in injury, could not be committed with an offensive touching, because only violent force can cause injury. See discussion at § 243(d). While this opinion appears to be in error, it may encourage ICE to charge that a burglary or other offense is a COV if combined with this enhancement.

1600
Former PC 12025(a), 12031(a) Repealed 1/1/12. See also current 25400, 25850

Carrying firearm (concealed or loaded in public place)

Not AF.

Not CIMT.

Not deportable under the firearms ground due to antique firearms rule; see discussion at PC 29800, and 25400, 25850

Misd involving firearms is a “significant misdemeanor” and thus an enforcement priority and bar to DACA and DAPA; see note at PC 25400.

1610
PC 17500

Possession of deadly weapon with intent to assault another.

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

While arguably it should not be CIMT, it might be charged as such and is not sure to avoid a CIMT. See Advice.

Not a deportable firearms offense, but best practice is a plea to a non-firearm or to leave ROC blank; see Advice.

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

To surely avoid deportable DV offense, best practice is to either identify a specific V with no domestic relationship (e.g., neighbor, police), or plead to a different offense; see Advice. 17500 should not be held a COV but there is no precedent.

PC 17500

CIMT/COV: To best avoid a CIMT or COV, consider PC 417, or 243(a) if necessary with PC 21310 or 25400. However, 17500 is preferable to PC 245 as a way to avoid a CIMT or COV. In that case, to provide extra security try to plead to intent to commit offensive touching, and possession of weapon but not intent to use or threaten. 168Defenders warn that PC 17500 may be held a CIMT because it is a specific intent crime; the language of PC § 17500 includes “with intent to” and the relevant jury instruction (CALCRIM No. 2503) requires the jury to find intent to assault beyond a reasonable doubt. In contrast, PC § 417 is a general intent crime.

Firearms ground: Not a deportable firearms offense due to antique firearms rule; see discussion at 29800. Also, statute should be held not divisible.

Assume an ROC identifying a firearm will be a “significant misdemeanor” firearms offense for DACA. Keep ROC clean of firearm and see note at PC 25400.

1620
PC 20010, 21310, 22210, 21710, etc.

Possession of weapon other than firearm; see Advice

Not COV169United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003). or AF. Can take more than 1 yr sentence.

See Advice

Not CIMT170Even 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)171A 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.

PC 20010, 21310, 22210, 21710

Good alternate plea to avoid CIMT, firearm, or COV. Includes possession of blowgun, dirk, dagger, knuckles, blackjack, stun gun.

1630
PC 25400(a)

Carrying concealed firearm

Not an AF, but as always try to get 364 or less on each count.

Not CIMT.

Not deportable firearms offense under antique firearms rule;172This 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.

PC 25400(a)

DACA. Some misdemeanors are “significant misdemeanors” and thus a bar to DACA.173As of this writing in August 2018, persons who have received DACA are permitted to apply for renewal, but many other decisions are tied up in lawsuits. For updates go www.ilrc.org/daca and www.unitedwedream.org. For a description of DACA eligibility and crimes bars, see the section on DACA in § N.17 Relief Toolkit (August 2018) at www.ilrc.org/chart. These include a misd relating to firearms, burglary, DV, sexual abuse, drug trafficking, and DUI, as well as any misd with a sentence imposed (not including suspended) of over 90 days. Conservatively assume that the antique firearms exception will not prevent this, and that a crime of DV will be very broadly defined. Three misd convictions of any kind, arising from three separate incidents, have the same effect. Expungement under PC 1203.4 might eliminate the conviction/s for these purposes.

A single felony conviction also is a bar to DACA, Reduction to a felony per PC 17 will eliminate this bar.

In all cases, even if a conviction is not a bar, it can be a negative discretionary factor. See materials on DACA cited in above endnote.

1640
PC 25850

Carrying loaded firearm in public

Not an AF, but as always try to get 364 or less on each count

Not a CIMT

Not deportable firearms offense under antique firearms rule. See discussion at 29800.

PC 25850

1650
PC 26350

Openly carrying unloaded handgun in public place

Not an AF, but as always try to get 364 or less on each count

Not CIMT

Assume it is deportable firearms offense because, like the federal definition, this excludes antiques—but imm advocates can seek arguments against this.174Pen 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.

PC 26350

Bad plea if avoiding deportation ground is the goal. Consider, instead a firearms offense that does not come within the firearms deportation ground because of the antique firearms exception, e.g., 25850 (carrying loaded firearm in public)

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

1660
PC 27500

Sell, supply, deliver, give possession of firearm to persons whom seller (a) knows or (b) has cause to believe is a prohibited person

Sale is not AF as firearms trafficking due to antique firearms rule.

Try to give added protection with plea to deliver or give, which lacks commercial element.

Unclear; might be CIMT. See Advice

Not deportable under firearms ground due to antique firearms rule. See discussion in PC 29800.

PC 27500

CIMT: Some courts have stated that unlicensed sale, as opposed to, e.g., gunrunning for gangs, is a regulatory offense and not a CIMT.175See, e.g. Ali v. Mukasey, 521 F.3d 737, 740 (7th Cir. 2008) (unlicensed trafficking of firearms should not be CIMT if is mere failure to comply with licensing or documentation requirements); cited with approval in Efagene v. Holder, 642 F.3d 918, 923 (10th Cir. 2011). 27500 does not require bad intent or even commercial gain but does include prohibited person. 27500(b) (having cause to believe buyer is a prohibited person) may be better than 27500(a) (knowing this).

Misd is a “significant misdemeanor” and thus an enforcement priority and bar to DACA, but 1203.4 may work. See PC 25400.

1670
PC 29805 (formerly PC 12021 (c))

Possess, own, etc. firearm after conviction of certain misdemeanors

Not AF

Possession by misdemeanant is not an AF

Should not be CIMT. Owning might be better than possessing

Not deportable firearms offense; see discussion in PC 29800.

PC 29805

See discussion in 29800

DACA: Misd is a “significant misdemeanor”; see 25400 advice

1680
PC 30305

Possession or ownership of ammunition by persons described in 29800

Divisible as AF; see Advice.

To avoid AF, plead to 29800.

See 29800

Not deportable firearms offense; see Advice.

Being an addict can cause deportability, inadmissibility. See § N.8 Controlled Substance.

PC 30305

AF: To surely avoid AF and deportable offense, plead to 29800.

If the plea is to 30305: AF includes possession of ammunition by a felon, addict, etc. To avoid an AF, plead to misdemeanant in possession. It is possible but not guaranteed that a plea to owning rather than possessing ammo as a felon or drug addict is not an AF. See discussion of “owning” at the endnote at PC 29800, above.

Deportable firearms offense. The firearms deportation ground does not include ammunition.176The deportation ground at 8 USC § 1227(a)(2)(C) includes possessing, carrying, selling etc., “firearms or destructive devices” as defined at 18 USC § 921(c), (d). Those sections do not include ammunition in the definition. In contrast, some offenses are aggravated felonies because they are analogous to certain federal felonies, some of which do include ammunition. That is why being a felon in possession of ammunition is an aggravated felony, although it would not be a deportable firearms offense. (Although the firearms AF definition does in some cases; see above.)

1690
PC 33215

Possess, give, lend, keep for sale, a short-barreled shotgun or rifle

Sale is an AF as trafficking.

Felony possession is not a COV but as always try to avoid 1 yr. See Advice

Possession is not a CIMT.177Matter of Hernandez-Casillas, 20 I&N Dec. 262, 278 (BIA 1990) and see Matter of Granados, 16 I&N Dec. 726, 728-9 (BIA 1979) (holding that possession of sawed-off shotgun is not a crime involving moral turpitude), abrogated on other grounds by Matter of Wadud, 19 I.&N. Dec. 182, 185 (BIA 1984). See Advice.

Yes, a deportable firearms offense; the antique firearm exception does not apply.178“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.

PC 33215

COV: While older decisions held felony possession of these weapons is a COV under 18 USC 16(b), these decisions were abrogated by the Supreme Court’s holding that 16(b) is void for vagueness.179Sessions v Dimaya, 138 S Ct 1204 (2018). See discussion at Pen C § 207, above. See PC 207.

CIMT: If possession is not a CIMT it should follow that lending or giving also is not, but there is no precedent on those, or the more dangerous offense of sale, so try hard to plead to possession.

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

1700
PC 32625, 33410

Possession of silencer; possession or sale of machinegun

See 33215

See 33215

Yes, deportable firearms offense

PC 32625, 33410

See 33215

1710
VC 20

False statement to DMV

Not AF

Should not be a CIMT. See Advice

No other removal ground.

VC 20

CIMT. This need not be a material false statement and there is no element of intent to gain a benefit. To avoid CIMT, plead to a specific false fact that is not material. However, the offense appears to be indivisible. If it is, then no convictions should be a CIMT. 

1720
VC 31

False info to officer

Not AF

See VC 20

No other removal ground.

VC 31

See VC 20

1730
VC 2800(a)

Refusal to obey order by peace officer

Not AF as obstruction (and 6-month maximum)

Not CIMT; can be committed by minor conduct

No other removal ground

VC 2800(a)

1740
VC 2800.1

Flight from peace officer

Not AF as obstruction of justice (364-day maximum).

Not AF as COV; see 2800.2.

Not CIMT180A 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.

VC 2800.1

1750
VC 2800.2

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

Seek 364 days or less in case it is charged as an AF as obstruction of justice. See Advice.

Not an AF as COV because it involves recklessness.

Ninth Circuit held not a CIMT due to three traffic violations alternative. If possible, plead specifically to three traffic violations per 2800.2(b), although legally this is not required. See Advice.

No other removal ground.

VC 2800.2

See endnote for discussion of COV and CIMT.181Veh C § 2800.2(a) punishes a person who “flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property …” Section 2800.2(b) provides “For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”  

Overbroad and Indivisible; CIMT. The Ninth Circuit held that VC 2800.2 is overbroad and indivisible compared to the definition of a CIMT, so that no conviction of the offense is a CIMT. Ramirez-Contreras v. Sessions, 858 F.3d 1298, 1305–06 (9th Cir. 2017).

First the court found that VC 2800.2 is broader than the definition of a CIMT (“overbroad”), because VC 2800.2(b) includes fleeing a police officer while committing three traffic violations – something that distinguishes it from similar statutes that have been held to be a CIMT. “Viewing the least of the acts criminalized, we see in subsection (b) that an individual can be convicted of violating § 2800.2 on the basis of eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” We must therefore conclude that the conduct criminalized does not necessarily create the risk of harm that characterizes crimes of moral turpitude, even though subsection (a) standing alone would appear to contain elements of a dangerous crime.” Ramirez-Contreras, 858 F.3d at 1305–06. Note that it is possible that the BIA later could come out with a published decision that found that even 2800.2(b) is a CIMT, and the Ninth Circuit could decide to defer to it. While that appears unlikely, there is no permanent guarantee.)

Next it found that 2800.2 is “indivisible” in terms of its definition of recklessness. It found that violating three traffic offenses and the more traditional definition of wanton disregard are different means of committing a single offense, rather than elements of different offenses.

In this case we do not apply the modified categorical approach because the elements of § 2800.2 are clearly indivisible. One must (1) be pursued by a police officer; (2) willfully flee from the pursuit; and (3) do so in a manner evidencing willful or wanton disregard for the safety of others. Subsection (b) provides the means of meeting one element, but does not establish an additional, divisible element. We test our analysis of the statutory elements by looking to California jury instructions. See Almanza–Arenas, 815 F.3d at 479 (verifying interpretation of elements by whether it is consistent with California jury instruction as to offense). California jury instructions for this offense require the state to prove (1) pursuit by a police officer; (2) the defendant was driving the vehicle with the intent to flee, elude, or evade the officer; and (3) the defendant drove willfully or wantonly in disregard for the safety of persons or property. Judicial Council of Cal. Criminal Jury Instruction 2181. Our analysis is fully consistent with the instruction. Because § 2800.2 has a “single, indivisible set of elements with different means of committing one crime, … it is indivisible and we end our inquiry.” See Almanza–Arenas, 815 F.3d at 476 (internal quotations omitted).

Ramirez-Contreras, 858 F.3d at 1306–07

Note also that the phrase in 2800.2(b), “includes but is not limited to” is indicative of it being a means, or list of illustrative examples. See Mathis v. United States, 579 U.S. 500, 518 (2016).

The fact that the statute is indivisible means that every conviction of 2800.2 must be evaluated by the minimum (least adjudicable) conduct of the three traffic offenses, regardless of the underlying facts or information in the record of conviction.  Therefore, no 2800.2  conviction is of a CIMT. 

COV. At this writing, the Supreme Court is considering whether recklessness should be included in a definition of COV that is identical to the immigration definition at 18 USC 16(a), in the pending Borden v. United States case. Even if the Court does add recklessness, however, that is likely to be defined as a conscious disregard of a known risk or similar definition that “three traffic offenses” does not match.

There were twists and turns to prior findings of whether 2800.2 is a COV, but the result is that it is not a COV under current law. After some litigation, the Ninth Circuit held that VC 2800.2 is not a COV because that requires intentional conduct and excludes reckless conduct. Penuliar v. Mukasey, 528 F.3d 603 (9th Cir 2008). The Supreme Court later held that this flight generally is a COV under a vaguely defined statutory section identical to 18 USC § 16(b), but a subsequent Supreme Court opinion struck down that section as void for vagueness, and then finally struck down 18 USC § 16(b).  See Sykes v. United States, 564 U.S. 1 (2011), overruled by Johnson v. United States, 576 U.S. 591 (2015) and see Sessions v Dimaya, 138 S Ct 1204 (2018). 

So, if the statute is indivisible, why we still want a specific plea to 2800.2(b)/three traffic violations? The majority of immigrants are unrepresented in removal proceedings, and immigration judges may not be aware of Ramirez-Contreras or, in some cases, of the full workings of the categorical approach. They may well look to the person’s record of conviction to see what happened. So while a specific plea is not legally necessary, it may help quite a bit in practice. To provide more direct help, photograph or photocopy the above legal summary and give a copy to the defendant, a responsible friend or family member, and their immigration advocate, if any.

AF.  Obstruction of justice is an AF, if a year or more is imposed. Counsel should assume conservatively that VC 2800.2 meets the definition of obstruction. See discussion of the Supreme Court decision on obstruction, Pugin v. Garland, No. 22-23 (June 22, 2023), at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).

For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence.

CIMT: Wanton disregard for safety can be demonstrated by three traffic violations, per 2800.2(b). That conduct is not a CIMT under current law. The Ninth Cir held that 2800.2 is not divisible between three traffic offenses and other wanton disregard. This means that all 2800.2 convictions must be evaluated based on the ‘three traffic violation’ standard under the categorical approach. 

2800.2 is also not a COV because it can be committed by recklessness.  See Borden v. U.S See further discussion of COV at PC 207.

The reason to try to have a specific plea to the three traffic offenses / 2800.2(b) is that, while it is not legally necessary, in practice many judges and officers will not know that the statute is not divisible, and they will rely on the person’s record of conviction, and the person may be unrepresented.

If there is an immigration atty, or just a functional defendant or family member, try to provide them with the text of the endnote, above.

1760
VC 4462.5

Display improper registration w/ intent to avoid vehicle registration requirement

Not AF.

Not CIMT.

No other removal ground.

VC 4462.5

This might be a minor traffic offense and not count for purposes of the three-misdemeanor bar to DACA. See PC 25400.

1770
VC10801-03

Operate Chop Shop; Traffic in vehicles with altered VINs (vehicle identity numbers)

Get 364 on each count to avoid AF. Also can be AF if loss to victim/s exceeds $10k.

Consider alternate plea such as PC 487, which can take 1 year or $10k loss, or 459, which might be able to take both.

See Advice.

Yes CIMT

No other removal ground.

VC10801-03

AF based on 1 year: A few AF categories might apply if 1 yr or more is imposed, such as receipt of stolen property, trafficking in vehicles where VIN has been altered, or even counterfeiting or forgery. If 1 yr can’t be avoided, try to plead to an offense such as 459, 487, or 594. If 1 yr was imposed on a prior, imm counsel may investigate arguments that 10801 is not an AF even with 1 yr.182Trafficking 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 theft183A crime of fraud or deceit is an aggravated felony if the loss to the victim/s exceeded $10,000. 8 USC § 1101(a)(43)(M)(ii). Section 10801 can involve a vehicle taken by either fraud or theft. Because the statute appears not to be divisible (because there is no requirement that a jury decide whether theft or fraud was the conduct), it should be judged according to the minimum conduct, which need not include fraud. Still, make every effort to avoid the $10k loss. See Pen C §§ 484 and 470 in chart. (See ILRC, How to Use the Categorical Approach Now (2021) for more information.)—but the act of altering the vehicle might be held to be deceit. By far the best practice is plea to theft with loss of $10k but not with 1 year, or burglary. See discussions at 487 and 470, and see § N.11 Burglary, Theft and Fraud.

1780
VC 10851

Vehicle taking, temporarily or permanently

Always an AF if a year or more is imposed. Get 364 days or less.

This is a change based on the 2023 Pugin decision. See Advice.

Never a CIMT regardless of info in the ROC.184CIMT: 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).)

To give D extra protection against an adjudicator’s mistake, try to make a specific plea to intent to deprive temporarily. But if that is not possible, note that many adjudicators know that 10851 is not a CIMT.

No other removal ground.

VC 10851(a)

AF. See citations and further discussion here.185 10851 as an AF. Before June 2023, in the Ninth Circuit no conviction of VC §10851 was an AF, even if a year or more was imposed. Under 8 USC 1101(a)(43)(G), (S), both a “theft” offense and an “obstruction of justice” offense are AFs with a year or more. The Ninth Circuit had found that auto-taking under § 10851 met the generic definition of “theft,” but that accessory after the fact under § 10851 did not meet the generic definition of obstruction as defined in Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1056-58 (9th Cir. 2020). The Ninth Circuit further found that under the categorical approach, § 10851 was not divisible between auto-taking and accessory. Because § 10851 was overbroad and indivisible, no conviction could be found an AF.  Lopez-Marroquin v. Barr, 955 F.3d 759, 760 (9th Cir. 2020)

Now we must assume that every conviction of § 10851 is an AF. In Pugin v. Garland, No. 22-23 (June 22, 2023), the Supreme Court rejected the Ninth Circuit’s definition of obstruction of justice and held that accessory after the fact (under a Virginia statute) is obstruction. It is extremely likely that the Ninth Circuit will find that California accessory after the fact also is obstruction, and that Pugin overturned both Valenzuela Gallardo and Lopez-Marroquin. This means that any violation of § 10851 comes within either theft or obstruction, so if a year or more is imposed the conviction is an AF.

 

Offenses that meet the generic definition of theft or obstruction of justice offenses are AFs if a year or more is imposed. 8 USC 1101(a)(43)(G), (S). 

VC 10851 includes auto taking, which meets the definition of “theft,” and being an accessory after the fact to the taking, which we must assume meets the definition of “obstruction of justice” under Pugin v. Garland, No. 22-23 (June 22, 2023). Defenders must assume that any conviction of 10851 is an AF if a sentence of a year or more is imposed.  

Immigration advocates should try to vacate the conviction. Advocates will argue that Pugin should not apply retroactively to convictions from before September 11, 2018, but we cannot rely on that. For further discussion of Pugin and arguments, see Advice to PC 32, above, and see ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).

For information on how to structure a sentence to avoid a year or more for immigration purposes, see § N.4 Sentence.

Alternatives. If a year will be imposed, or might if there is a VOP, plead  to PC 459, 1st or 2nd degree. This is immigration neutral (except it is a to DACA). 

Note that a plea to grand theft, PC 487, may not be safe. While 487 can take a sentence of a year or more without being an AF, it will be an AF if on the same count there is a sentence of a year or more, and the loss to the victim/s exceeds $10,000. See Advice to PC 484, above. If the car at issue might be worth more than $10,000, ICE might charge 487 with a year as an AF.

1790
VC 10852

Tampering with a vehicle

Not AF; and a misdemeanor

Should not be held a CIMT. See Advice.

No other removal ground.

VC 10852

CIMT. Never a CIMT because it involves minor interference with and no intent to deprive owner.186“An accepted definition of ‘tamper’ is to ‘interfere with.’” People v. Anderson (1975) 15 Cal.3d 806. Opening a door of an unlocked vehicle without the owner’s consent is tampering. People v. Mooney (1983) 145 Cal.App. 3d 502. This is a lesser-included offense of Veh C § 10851 and requires no intent to deprive the owner.

1800
VC 10853

Malicious mischief to a vehicle

Not AF

Should not be CIMT; try to plead to intent to annoy. See Advice

No other removal ground.

VC 10853

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.187The minimum conduct to commit Veh C § 10853 includes non-CIMT conduct such as merely moving levers or climbing onto or into vehicle, and the specific intent can be to commit a crime not involving moral turpitude. See § 10853 and Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc).

1810
VC 12500

Driving without license

Not AF.

Not CIMT.

No other removal ground.

VC 12500

DACA: This should be a minor traffic offense and not part of the three-misdemeanor bar.

1820
VC 14601.1 14601.2 14601.5

Driving on suspended license with knowledge

Not AF

Not CIMT—but see Advice if DUI is involved and warn client it is conceivable that a CIMT could be wrongly charged.

No other removal ground

VC 14601.1,  14601.2 , 14601.5

CIMT: A single Arizona offense that has as elements DUI while knowingly driving on a suspended license was held a CIMT.188Marmolejo-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.189See, 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.190The Ninth Circuit has held that the factual basis for one offense cannot be used to characterize a separate and distinct offense. See Aguilar-Turcios v. Holder, 691 F.3d 1025 (9th Cir. 2012), substituted for 582 F.3d 1093 (9th Cir. 2009).

DACA: This is a minor traffic offense and not a misd for purposes of three misd bar to DACA—but multiple convictions may be a basis for denial. See PC 25400.

1830
VC 15620

Leaving child in vehicle (infraction)

Not AF.

Not CIMT.

Conceivable that ICE would charge this as a deportable crime of child abuse. See suggestions in Advice.

If D has a prior 15620 and did not have counsel (or had counsel who did not warn), use PC 1473.7 to vacate this.

VC 15620

Child abuse: Defenders must conservatively assume that a California infraction will be treated as a conviction for imm purposes. See 11358. Even if it is, arguably the elements of 15620 do not constitute deportable child abuse under BIA decisions. But because the child abuse deportation ground is broadly defined and widely charged, seek a different disposition. Explain to DA that this infraction could destroy this family. Put off hearing until D completes conditions such as parenting classes, then ask to drop charges. Or if necessary, consider pleading up to 273a(b).

For a prior conviction, PC 1473.7 is post-conviction relief that is appropriate in many contexts. Where there was no counsel at all, as there may not be with a prior infraction, it should be granted nearly automatically.

1840
Veh C. 16025

Failure to exchange info after accident (infraction)

Not AF

Not CIMT; see VC 20001

No other removal ground

Assume conservatively that gov’t will treat an infraction as a conviction for imm purposes (see 11358), but this still has no immigration effect.

1850
VC 20001, 20003, 20004

Hit and run (felony)

Try to get 364 days or less to avoid possible AF charge as obstruction of justice, although immigration advocates will contest that. See Advice 

Dangerous as a CIMT. See Advice.

Assume 20001 enhancement under 20001(c) is CIMT.

No other removal ground.

VC 20001, 20003, 20004

AF as Obstruction. Obstruction of justice is an AF if a year or more sentence is imposed. INA 101(a)(43)(S). 

Defenders should act conservatively and try to avoid a sentence of a year on any single count, in case ICE charges this as obstruction of justice under Pugin v. Garland, 22-23, 2023 WL 4110232 (June 22, 2023). See discussion of obstruction and Pugin at PC 32 Advice. It appears that hit and run, which does not include any intent to avoid a legal process, should not be held obstruction — but given the vague definition set out in Pugin ICE charge it.

If a year or more is needed consider a plea to felony vandalism, which could be coupled with reckless driving. If lot of time is required, VC 20001 can be the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence

CIMT. See endnote for citations and further discussion.191See Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008) (finding that VC § 20001(a) is not categorically a crime involving moral turpitude because it could include acts without evil intent, e.g., stopping and providing contact and insurance information but failing to provide vehicle registration number). The statute is divisible because a jury must unanimously decide which duty defendant failed to perform. CALCRIM 2140, 2141, 2150, 2151. 

Is a guilty plea stating that D failed to provide registration information, with no statement regarding whether they also failed to stop, sufficient to prevent a finding that the conviction is a CIMT?  It may not be where the person is applying for relief – for example, if D is an undocumented person or a deportable LPR who must apply for cancellation, a family visa, or other relief. In Pereida v. Wilkinson, 141 S.Ct. 754 (2021), the Supreme Court held that an applicant for relief has the burden to prove that a conviction under a divisible statute is not a bar to relief.  This may be interpreted to mean that silence on the failure to stop issue will be insufficient to prove the person was not convicted of that. For that reason, the safe plea for an undocumented person is to state specifically that they did stop. When the issue is deportability, the burden of proof shifts: ICE has the burden to prove that a conviction under a divisible statute is a deportable offense. Thus, if an LPR is charged with being deportable based on a CIMT conviction, and the record of conviction is silent as to whether they stopped, ICE would not be able to meet its burden to prove that the hit and run was a CIMT. However, in Pereida the Court suggested that evidence from outside the record of conviction can be considered in this inquiry, and that Shepard does not apply in removal proceedings. This may mean that ICE could produce other records to try to prove that the LPR did not stop. The really safe course would be a specific plea to having stopped but having failed to provide registration information. In many cases, this will not be possible.

In the alternative, consider pleading to offenses other than hit and run that are not CIMTs but that fit the facts, e.g., lower-level reckless driving plus vandalism.

To avoid a CIMT, assume it is necessary to plead to “failure to provide registration information” and further to state affirmatively that the person did not fail to stop (i.e., state that they did stop). Assume that this is necessary for any person who must apply for relief, and highly advisable for an LPR who is defending against a charge of being deportable, who needs to avoid a CIMT. 

To avoid a CIMT, consider VC 23103 misd or PC 594,or a combination.

1860
VC 20002 (a)

Hit and run (misd)

Not AF.

Dangerous as a CIMT; see Advice to 20001192See, 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.

VC 20002(a)

See VC 20001193In 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)

1870
VC 23103

Reckless driving

Not AF as COV plus potential sentence of less than a year

Should not be held a CIMT.194Recklessness 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

VC 23103

CIMT: While 23103 and 23103.5 should not be held CIMTs under any circumstances, best practice is to plead to recklessness re property.195This 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. Supreme Court affirmed that reckless conduct cannot amount to a COV. See discussion of Borden v. United States (2021) at PC 207.

1880
VC 23103.5

Reckless driving & use of alcohol or drugs

“Wet reckless”

Not AF as COV (plus, less than 1 yr potential sentence). See Advice to 23103.

Not CIMT; see 23103

Not CS offense because the offense is not divisible as to the substance; see 11377, above. But best practice is plea to alcohol or non-CS, e.g., sleeping or allergy pills.

VC 23103.5

AF: Not an AF; see discussion of COV, sentence, and Borden at 23103, above.

Discretion. Generally a wet reckless is not treated as harshly as DUI, which is treated as a severe negative factor in discretionary decisions. See PC 23152. It often is a real benefit to get wet reckless rather than a DUI.

DACA: This has not been treated as a DUI significant misdemeanor bar to DACA, but D should obtain 1203.4 expungement if possible. See PC 25400.

1890
VC 23104, 23105

Reckless driving proximate cause of injury

Not a COV, but as always try to obtain 364 or less.

Assume that 23105 is a CIMT, but 23104 might not be. See Advice.

No other ground

VC 23104, 23105

CIMT: Acting recklessly with wanton disregard of imminent risk to life or serious injury is a CIMT. Because 23104 requires only “bodily injury” while 23105 sets out various more serious injuries, we would argue that 23014 is not a CIMT.  Note voluntary intoxication is not a defense against a CIMT finding.

AF/COV: Supreme Court held that reckless conduct is not a COV for this purpose, so a conviction should not be an AF even if a year or more is imposed.

1900
VC 23110 (a), (b)

(a) Throw substance at parked or moving vehicle

(b) Throw dangerous items at same with intent to cause great bodily injury

Part (a) is not a COV, and max penalty is 6 months.

Assume (b) is a COV. To avoid an AF, get 364 or less on each count. See § N.4 Sentence.

(a) should not be CIMT196Subsection (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).

VC 23110(a), (b)

CIMT: Best plea to (a) is throwing something at a car parked on a street or similar mild conduct, in case IJ (wrongly) looks at record instead of evaluating the offense by the minimum conduct required for guilt.

1910
VC 23152 (a)

Driving under the influence of alcohol

Not AF

(In the future Congress might make a third DUI with 1-yr imposed an AF. If possible, avoid 1 yr on a single DUI count in that situation. See § N.4 Sentence.

Not CIMT, including multiple offenses.197Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001).

Conviction is itself is not a per se inadmissible offense. However:

A recent DUI arrest or conviction, or multiple past arrests or convictions, can trigger evaluation for being inadmissible under the health grounds due to alcoholism.198Having a physical or mental disorder (including alcoholism) that poses a current risk to self or others is a basis for inadmissibility under the health grounds. 8 USC § 1182(a)(1)(A)(iii).

People with multiple DUI (and other) priors might have become inadmissible by amassing a lifetime of 5 years aggregate sentence imposed (including suspended sentences) for two or more convictions of any type of offense.1998 USC § 1182(a)(2), INA § 212(a)(2).

See Advice for other consequences.

VC 23152(a)

See 23103.5 as alternative plea.

See Practice Advisory on DUI immigration consequences.200See ILRC, Immigration Consequences of Driving under the Influence (August 2017) at https://www.ilrc.org/immigration-consequences-driving-under-influence.

Pretrial Diversion. Two California courts of appeals have found that DUI is not eligible for PC 1001.95 diversion.201See Grassi v. Superior Court (2021) 73 Cal.App.5th 283; Tan v. Superior Ct. of San Mateo Cty (2022) 76 Cal. App. 5th 130 (review filed).

Reckless, wet reckless. While 23103.5 is not a good immigration plea, it is far better than a DUI for purposes of discretion in all cases, and often is the identified case goal. It is critical for DACA.  See negotiating resources here.202DACA, DUI’s, and Wet Reckless. In many crim/imm cases, the immigrant does not need to seek a less serious offense; in fact, they may even “plead up” to an offense that carries more severe criminal consequences but is immigration-neutral. But this is not the case with DUI’s, and especially not with DACA. A DUI is an absolute bar to DACA, but VC 23103.5 is not. Absent some other serious negative factor, applicants with a 23103.5 conviction are routinely granted. In other kinds of cases, while it is best not to have a 23103.5, it often is treated with far more leniency than a DUI and can make the difference between winning and losing. In all cases, of course, a 23103 is even better.

Here are two resources for negotiating these cases. First, regarding the DA’s duty to consider avoiding immigration consequences in general, and especially in the context of DUI’s and DACA, see ILRC, DACA and California Penal Code § 1016.3 (2019), https://www.ilrc.org/sites/default/files/resources/ilrc_memo_re._dui_cases_and_1016.2_and_1016.3_final.pdf.

Second, here is a sample letter explaining the DACA issue to a DA or other party.

Because Mr. XYZ was brought to the U.S. as a child and before 2006, he is eligible to apply for Deferred Action for Childhood Arrivals, or DACA, the special relief for Dreamers. That makes this case critical, because a misdemeanor conviction for driving under the influence (DUI) is an absolute bar to DACA. A person who is convicted of a “significant misdemeanor” is barred from DACA eligibility, and a misdemeanor DUI conviction is a significant misdemeanor and will act as a bar. See U.S. Citizenship and Immigration Service, DACA Frequently Asked Questions, Question # 63, listing DUI as a significant misdemeanor, https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/frequently-asked-questions#criminal_convictions.

If instead he can plead to a wet reckless, Mr. XYZ will remain eligible for employment authorization and temporary protection from removal under DACA. In our universal experience, a misdemeanor conviction for VC § 23103.5 is not counted as a DUI for DACA purposes because it lacks the element of incapacity. As you know, VC § 23103.5 can carry the same criminal/driving penalties as a DUI and is equally priorable. My understanding is that the defendant shows great remorse for his action and is determined to make amends and prove that he will do better.  [If applicable: Because Mr. XYZ already registered for DACA and voluntarily provided information about his immigration status, he is potentially subject to removal if he is disqualified from DACA.]  Given that [list equities], I hope that the People  will consider a wet reckless plea as a means ‘to reach a just resolution’ in this case, pursuant to Penal Code 1016.3(b).

DACA. A DUI is a bar to DACA (the relief for Dreamers), but PC 1203.4 may work to eliminate it. VC 23103.5 is not a bar to DACA. See resources at endnote above.

Good Moral Character. The BIA held that two DUI convictions within the period for which GMC must be shown create a rebuttable presumption against the person having GMC. GMC is necessary for naturalization, non-LPR cancellation, VAWA, and some other relief.203See Matter of Castillo-Perez, 27 I&N Dec. 664 (AG 2019) and see forthcoming practice advisory at www.ilrc.org/crimes. For more on the good moral character requirement, see section 17.26 of ILRC, N.17 Relief Toolkit (2018) at www.ilrc.org/chart.

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

Release on bond from ICE detention. Any DUI — but especially more than one DUI, or a relatively recent DUI – is a serious factor against release on bond.204In the case of a long-time permanent resident charged with a felony DUI, with two prior DUI convictions from ten years earlier at least one of which included an accident, the BIA held that the combination of events meant that the person was not eligible for release on any bond because he was a danger to the community. Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018). However, a federal district court held that an immigration judge could not deny bond based on a finding that the person was a danger to the community, when the finding was based solely on two misdemeanor DUI convictions from a few years earlier, when the person did not serve custody time and did complete probation conditions. The finding that these DUI convictions demonstrated that the person was a danger to the community was “clearly erroneous.” Ramos v. Sessions, 293 F.Supp.3d 1021 (N.D. Cal. 2018). Wet reckless offers no guarantee but is better.

Asylum/Refugees. A DUI with injury could be held a “particularly serious crime” affecting asylum applicants, asylees and refugees. See 23153.

Revokes visas; travel warning. U.S. consulates likely will revoke a non-immigrant visa (e.g., student visa) in response to DUI conviction or arrest. If this happens, the person should not return to the home country or travel outside the U.S. without first consulting with an immigration attorney. (The consulate does not have the ability to revoke the person’s permitted period of stay that was granted upon admission, but that can change if the person leaves the U.S.)

SB 54 and ICE Visits to the Home. A misd DUI comes under SB 54 protections, which depending on the county may decrease the chance that ICE will arrest the person from jail. ICE may go to D’s home, if it decides to prioritize DUI’s. (At this writing ICE is not, but this has changed frequently.) Give D “red cards” and refer to a nonprofit for training.205SB 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.

1920
VC 23152 (f), (g)

Driving under the influence of a “drug,” or of a drug and alcohol

See 23152(a)

See 23152(a)

Should never be a CS offense under the categorical approach,206A conviction comes within the controlled substance ground of inadmissibility or deportability only if, under the categorical approach, it involves a federally identified CS. See Mellouli v. Lynch, 135 S. Ct. 1980, and discussion at H&S C § 11377. Sections 23152(e) does not meet that test. It is overbroad because the minimum conduct may involve a drug that is not a CS (e.g., over-the-counter sleeping or allergy pills). It is indivisible because the single term “drugs” does not set out statutory alternatives, at least one of which is limited to controlled substances. See, e.g., Descamps v. United States, 570 U.S. 254 (2013) (the single term “entry” is not divisible between permitted and non-permitted entries). Because the statute is overbroad and indivisible, no conviction can be a controlled substance offense for any immigration purpose. Authorities may not consult the record of conviction to determine what “drug” was involved. See ILRC, How to Use the Categorical Approach Now (2021) for more information. However, because authorities do not always correctly apply the categorical approach, the best practice is to avoid naming a federally defined CS in the ROC. Also, warn the client not to talk with any immigration authorities about the event or any controlled substance that was involved, without first getting immigration help. The government might try to assert that even though the person was not convicted of a CS offense, the person is inadmissible for “admitting” a CS offense. but best practice is to plead to alcohol or to a specific non-CS drug, e.g., allergy or sleeping medication. See Advice.

VC 23152(f), (g)

Generally, see 23152(a).

CS. This is not a CS offense because “drug” is not a divisible term, and it includes substances that are not CS. However, it could prompt questioning by imm officials that would lead to the person formally admitting to using a CS, which can be a ground of inadmissibility, unless the person pleads to a specific non-CS.

1930
VC 23153

DUI causing bodily injury

Not AF

See VC 23152(a)

Not CIMT

See VC 23152(a)

See VC 23152(a)

VC 23153

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.207See Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) (depending upon individual circumstances, the BIA can properly find that a conviction of Veh Code § 23153(b) is a particularly serious crime). (DUI without injury should not be, but no guarantee.) See also Advice to 23152 re proposed asylum regs.

1940
VC 23572

Enhancement for DUI: child under 14 in the car

Not an AF; see VC 23152

Unknown if it is a CIMT

Assume this is a deportable crime of child abuse

VC 23572

See VC 23152.

Consider 273a(b) (but not 273a(a)) instead. Or if needed, plead to both 273a(b) and 23152(a) or wet reckless.

1950
W & I 10980(c)

Welfare fraud

AF if loss to gov’t exceeds $10,000.

See § N.11 Burglary, Theft and Fraud and see Advice.

Yes CIMT. Consider PC 529(a)(3), 530.5.

No other removal ground.

W&I C 10980(c)

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 10980.208Cal. Welf. & Inst. Code § 10980(c) provides that in setting restitution to the state agency, the agency’s “loss” should be calculated as the amount the government overpaid. This factor makes welfare fraud potentially riskier than even the regular fraud/deceit case. See discussion in Ferreira v. Ashcroft, 390 F.3d 1091, 1098 (9th Cir. 2004), although note that there the defendant stated in the guilty plea that restitution exceeded $10,000. If it is possible to plead to theft, or to perjury, forgery, etc. without a one-year sentence, counsel should do so. If a plea must be taken to welfare fraud, counsel should write a written plea agreement to one count of fraud where the government lost less than $10,000 (or more than one count where the aggregate is less than $10,000). At sentencing, accept restitution of more than $10,000 with a Harvey waiver and, for the immigration judge’s benefit, a statement that the rest of the funds are being repaid based on dropped charges or uncharged conduct. See Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). Note that both Chang and Ferreira, supra, were published before Nijhawan v. Holder, 557 U.S. 29, 42 (2009), which further defined the aggravated felony. For further discussion see Pen C § 470, above.

This offense is not theft and therefore OK to take 1 yr sentence, unless commission requires perjury.

1960
B&P C 4141 (and former 4140)

Sell syringe without a license (formerly possess)

No

No, because they are regulatory offenses

Should not be a conviction of a CS offense  but see other defense options at H&S C 11377

B&P C 4141

Because these offenses have no element pertaining to a controlled substance (CS), they should have no imm consequences. B&P C 4140 is a good substitute for possession of drug paraphernalia, H&S C 11364. B&P C 4141 is a good substitute for sale of drug paraphernalia, which is an aggravated felony.

20
Current H&S C 11357(a) (2) This analyzes the current statute, amended by Prop 64. See below for pre-Prop 64 version of 11357.

Possess no more than 28.5 grams of cannabis or 8 grams of concentrated cannabis, while age 18-20 (infraction). ****
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.209A 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).

Current H&S C 11357(a) (2)

Infractions: Although the BIA has held that some states’ infractions do not rise to the level of “convictions” for immigration purposes, and there are good arguments that California’s should be treated like that, in practice DHS is treating California infractions as convictions. A cannabis infraction is potentially a dangerous conviction of a controlled substance offense!  See also 11358, a potential “aggravated felony infraction.”

Fight hard to avoid any CS conviction, even 28.5 grams of marijuana or less. Try instead for PC 32, other non-drug offense, or PC 1000 pre-trial diversion (for client who is likely to succeed). See Advice to 11377.

Immigration advocates can argue that an infraction is not a conviction.  See infraction advisory at www.ilrc.org/crimes. At the same time, seek post-conviction relief under PC 14743.7 or other vehicles. The person likely had no defender.

Argument that California cannabis is not a federally defined controlled substance. Immigration advocates can argue that due to Prop 64 changes, California cannabis is overbroad and indivisible compared to the federal definition, and therefore California cannabis convictions on or after Nov. 9, 2016 (the effective date of Prop 64) are not controlled substance convictions for immigration purposes. See endnote for further discussion and citations.210 This argument was developed by the students of the Boston College Law School Ninth Circuit Appellate Program, and Associate Professor Kari Hong, as part of the case Prado v. Barr, 923 F.3d 1203 (9th Cir. 2019). In Prado  the court denied relief, but did not reach all of the issues.. Many thanks to them for sharing the argument.

In sum, the new California definition of cannabis, created by Proposition 64, is overbroad and indivisible compared to the federal definition of marijuana, and thus is not a controlled substance for immigration purposes. Under this reasoning, no conviction involving California cannabis from on or after November 9, 2016 (the effective date of Proposition 64) is a controlled substance conviction.  Here is a summary of the argument.

Under the categorical approach, every criminal law term that appears in removal grounds, including “controlled substance,” has a federal “generic” definition. The federal generic definition of “marihuana” is 21 USC § 802(16)(B). It includes the entire cannabis plant, except for two parts: it has long excluded the “mature stalks” of the plant, and as of December 20, 2018, under the Hemp Farming Act, it excludes “hemp,” which is defined at 7 USC § 1639o as any part of the plant that contains no more than 0.3% of THC.  So, the federal law definition is a bit narrow because it does not reach any cannabis with 0.3% or less of THC, or any mature stalks at all, regardless of percent of THC.

Next we compare the generic definition to the relevant state definition. In Matter of Guadarrama, 27 I&N Dec. 560 (BIA 2019), the BIA considered a Florida conviction for possession of marijuana, as defined by Florida Statute §§ 893.02(2), (3). Florida had excluded mature stalks from its definition of marijuana (like the federal statute), until in 1978 it added them back in. The respondent argued that his conviction did not make him inadmissible under the controlled substance ground, because the Florida definition (which includes mature stalks) is broader than the federal definition (which does not). The BIA acknowledged that under the plain language of the Florida statute, the Florida definition of marijuana is overbroad because it includes mature stalks. Recall that since November 9, 2016, the California definition also has included mature stalks.

Still, the BIA denied Mr. Guadarrama’s case. Under the categorical approach, along with showing that a state statute reaches conduct not covered by the generic definition (e.g., possessing mature stalks), one also must show a “realistic probability” that this conduct will be prosecuted, and it was not just invented as an exercise in “legal imagination.” This can be done by producing an actual case where that conduct was prosecuted. In addition, in most but not all jurisdictions, the realistic probability of prosecution can be shown without cases as long as the conduct is clearly set out in the language of the statute. In Guadarrama, however, the BIA reaffirmed its (minority) stance that the clear language of a state statute alone is not enough to establish a “realistic probability” of persecution; the person must show actual prosecutions involving mature stalks. Mr. Guadarrama did not present this, and he lost.

Fortunately, most circuit courts of appeals, including the Ninth Circuit, disagree with the BIA. They permit clear statutory language to demonstrate a realistic probability of prosecution, and would have held for Mr. Guadarrama. For example, the Eighth Circuit held that the same Florida marijuana offense is not a controlled substance conviction for immigration purposes. Regarding the realistic probability of prosecution issue, the court acknowledged that case examples are required for this showing if a statute is ambiguous or vague. “But when the statute’s reach is clear on its face, it takes no ‘legal imagination’ or ‘improbable hypotheticals’ to understand how it may be applied and to determine whether it covers conduct an analogous federal statute does not.” Gonzalez v. Wilkinson, 990 F.3d 654, 660 (8th Cir. 2021). The court noted that the First, Second, Third, Fourth, Ninth, Tenth Circuits, the Sixth Circuit in unpublished cases, and at least some Eleventh Circuit cases have held that statutory language alone is sufficient to prove realistic probability of prosecution, and that Supreme Court cases, without discussion, have acted on that premise. The Fifth Circuit, like the BIA, accepts only case examples. See Gonzalez at 659-61 and n.3.

Under this reasoning, conviction of a California cannabis offense on or after November 9, 2016 should not be held a controlled substance offense within the Ninth Circuit (and most other jurisdictions). The Ninth Circuit holds that clear language in the statute is sufficient to show a realistic probability of prosecution, without cases as evidence. See Chavez-Solis v. Lynch, 803 F.3d 1004, 1009–10 (9th Cir. 2015) (quoting United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc), abrogated on other grounds).

Since November 9, 2016, the California statute clearly includes mature stalks with more than 0.3% THC, and these are not reached by the federal generic definition. Before Proposition 64, the California and federal statutory definitions of marijuana both excluded mature stalks. California H&S C § 11018 provided in part, “’Marijuana’ means all parts of the plant Cannabis sativa L. … It does not include the mature stalks of the plant …” (November 8, 2016). That definition was changed by California Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act. Proposition 64, § 4.1, amended § 11018 by ending the exclusion of mature plant stalks, and instead excluding the narrower category of “industrial hemp” (which is defined the same way as federal “hemp”: any part of the plant that contains no more than 0.3% of THC.) California cannabis is more broadly defined 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. In fact, some mature stalks of marijuana do have a THC level that is higher than 0.3 percent, which is why California decided to regulate them. See, e.g., Small & Marcus, Hemp: A New Crop with New Uses for North America, in Trends in New Crops and New Uses 284, at 284, 293-94 (Jules Janick & Anna Whipkey eds., 2002) (noting how Canada was deliberating not cultivating certain strains of hemp because a “disturbingly high percentage of the collections have THC levels higher than 0.3%.”).

The California definition of marijuana also is indivisible. The statute is not phrased in the alternative, with one section referring to mature stalks. Also, 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). Because the California statute is overbroad and indivisible, no conviction relating to cannabis as defined by Prop 64 is a controlled substance offense, even if the particular offense did not involve mature stalks.
While pursuing this argument, at the same time investigate possible post-conviction relief.

Defenders should try not to rely on these defenses and not to plead to a cannabis offense, but should know they exist when evaluating any conviction from on or after 11/9/16. If it is necessary to plead to a cannabis offense, try to plead specifically to conduct limited to “mature stalks” at the plea colloquy, and provide some written proof of this. While this is not legally necessary to support the possible defense, it may simplify things considerably in immigration court.

If the best options are between a plea to cannabis or to some other substance, cannabis is best for immigration purposes due to this defense.

Post-conviction relief. PC 1203.43 should eliminate prior DEJ pleas for imm purposes, but because ICE is fighting against these it may be better to obtain 1473.7. For a single minor drug conviction from on or before 7/14/11, see Advice at 11377 regarding the Lujan benefit. Consider other post-conviction relief, including PC 1473.7 to vacate. See Advice to 11377. Prop 64 provides sealing post-conviction relief at H&S C 11361.8(e)-(h),but we do not have precedent that DHS must accept it and do not recommend it. See more resources at https://www.ilrc.org/immigrant-post-conviction-relief

Concentrated cannabis. See Advice at 11357(b)(2).

Admitting conduct relating to marijuana, working in the industry. Warn immigrants not to discuss marijuana with any imm officials without first seeing an imm lawyer, and not to work in the mj industry. Although mj has been legalized in many states, it remains a federal CS offense to possess, grow, sell, or share it. Noncitizens who admit possession or industry employment to an imm official might be found inadmissible, even without a conviction and even for conduct permitted under California law. USCIS recently reaffirmed it would impose these penalties. See online legal advisory and community flyers in multiple languages.211 See community flyers in English, Spanish, and Chinese warning immigrants about the dangers of even “lawful” marijuana conduct, and see legal discussion of risks and defenses at ILRC, Practice Advisory: Immigration Risks of Legalized Marijuana (2021), at https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana.

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.

120
Current H&S C 11357(b) (2) This is the current statute. See below for pre-Prop 64 version of 11357

Possess more than 28.5 grams cannabis or 8 grams concentrated cannabis
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, plus inadmissible with no 212(h) waiver, CS offense—unless D can qualify for the 30 grams mj category. See description of the category and its advantages at (a)(2), above.

The BIA held that the 30 grams amount is a factual issue.212The BIA held and the Ninth Circuit agreed that the amount of marijuana is not determined using the categorical approach, which focuses on the minimum conduct required for guilt; it is determined using the fact-based “circumstance specific” analysis where any “reliable and probative” evidence may be considered. Matter of Davy, 26 I&N Dec. 37 (BIA 2012); Matter of Hernandez-Rodriguez, 26 I&N Dec. 408 (BIA 2014); Bogle v. Garland, 21 F.4th 637 (9th Cir. 2021). For further discussion, see Zota, Matter of Davy and the Categorical Approach (NIPNLG January 15, 2013) at https://nationalimmigrationproject.org/PDFs/practitioners/practice_advisories/crim/2013_15Jan_davey-categor-apprch.pdf.

Even 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.

H&S C 11357(b) (2)

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

Concentrated cannabis.213The 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”).

[ii] See, 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.
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 “marihuana,” which includes concentrated cannabis, is not a deportable offense. But best practice is to plead to six grams or less of hashish, or else to marijuana, if possible.

Specific plea to 30 grams or less. The BIA held the 30 grams or less issue is “circumstance specific” and can be proved by facts outside the record of conviction. There is strong authority that a plea bargain that specifically names the amount as 30 grams or less defines the conviction and trumps other evidence,[ii] although ICE might try to contest this.

130
Current H&S C 11357(c) Current statute. See below for pre-Prop 64 version of 11357

Possess 28.5 grams cannabis or 8 grams concentrated cannabis on school grounds, if age 18 years or older

Not an AF, unless a prior possession is plead or proved
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.

Current H&S C 11357(c)

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).214See Matter of Moncado, 24 I&N Dec. 62, 67 (BIA 2007) (small amount of marijuana in a prison); Matter of Martinez-Zapata, 24 I&N Dec. 424, 430 (BIA 2007) (drug-free zone). To get those benefits, try to plead to 11357(a) or (b).

140
H&S C 11377 H&S C 11350(a) uses the same analysis

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

Possession is not an AF unless: (a) a prior possession offense was pled or proved for recidivist enhancement, or (b) it is possession of flunitrazepam

Possession is not a CIMT (but sale or distribution is)

Conviction is a deportable and inadmissible CS offense, unless a non-federal substance defense applies. Formally admitting that one committed a CS offense, even without a conviction, makes one inadmissible (but not deportable). 

See discussion at See Advice regarding alternative dispositions, such as a plea to a non-drug offense; PC § 1000 diversion (if the person is likely to successfully complete it; see Part B.2, below); and an alternative plea such as PC §§ 32 (with a sentence of 364 days or less) or 372.5, although those alternatives are safer for LPRs than for undocumented people.

Post-Conviction Relief:  Minor drug offenses may be eligible for special PCR, including if the person completed the former DEJ (PC § 1000, 1979-2017) or current Prop 36, and Lujan-Armendariz relief for certain minor convictions from on or before July 14, 2011. See below 

H&S C 11377.   H&S C 11350(a) uses the same analysis

General Advice for all Controlled Substance Offenses. Also, see endnote215See generally ILRC, § N.8 Controlled Substance at www.ilrc.org/chart (2019). For California post-conviction relief generally, see ILRC Practice Advisory, Overview of California Post-Conviction Relief (July 2022) and see the ILRC manual, California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes (Jan. 2023), https://store.ilrc.org/publications/california-post-conviction-relief-immigrants-how-use-criminal-courts-erase-immigration.

See also:

-ILRC, Practice Advisory: What Qualifies as a Conviction for Immigration Purposes (April 2019) 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, but note that since ICE often contests the effect of § 1203.43, the most secure option would be for the person also to obtain relief under § 1473.7)

-ILRC,  Practice Advisory: § 1473.7 Motions to Vacate a Conviction or Sentence in California (Oct. 2020) at https://www.ilrc.org/14737-motions-vacate-conviction-or-sentence-california and Practice Advisory: Using and Defending California Penal Code 1473.7 in Immigration Proceedings (April 2020) at https://www.ilrc.org/using-and-defending-california-penal-code-%C2%A7-14737-vacaturs-immigration-proceedings-sample-memorandum

-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. In particular, see ILRC, How to Defend Immigrants Charged with Drug Offenses, Including New PC § 372.5 (Jan. 2023).

1. Try to avoid a CS conviction—especially a first one! See options. Depending on the individual, a single possession conviction involving a federally-defined substance can be fatal to current or hoped-for immigration status. The most minor conviction can destroy lives and families, including permanently depriving children of a parent. A drug trafficking conviction is fatal to almost all immigrants who cannot prove a likelihood that they will be tortured in the home country.

The best option is usually to bargain to drop the drug charge/s and instead plead to an immigration-neutral non-drug offense. Argue equities and try to plead to e.g., 32, 370/372.5 459, 136.1(b), trespass, 459, DUI, B&P C 4140, etc. Individual analysis is required, but often a plea to a property or even a violent offense is better than a CS offense. 

There are good options after that, but their effectiveness differs depending on the individual defendant’s immigration needs, so be sure to discuss this with an expert. For example, an asylum applicant might do better with an 11350 than with a more serious but still immigration-neutral non-drug offense, while an LPR or person seeking other status could be the opposite. Common defense options are set out below, roughly in order of preference. Each is discussed in more detail in this section.

  1. Plead to any immigration-neutral (or at least less bad) non-drug offense.
  2. Take pre-trial diversion, PC 1000, if D is likely to complete it. 
  3. Plead to a specific non-federal substance, e.g., chorionic gonadotropin. Immigration advocates can argue that marijuana, heroin, and meth as defined under California law are not a federal CS, but defenders should not rely on this.
  4. HR/DV defense: Might D be a victim of human trafficking or domestic violence, who is committing a drug (or any other) offense due to coercion? Coercion can mean under direct orders (e.g., to sell drugs) or coercion arising from the victimization, without orders (e.g., taking drugs as a response to despair). This could be a defense to a current charge; a vacatur for a prior conviction; and/or a possible path to legal status.
  5. Plead to PC 372.5 (2023) or, with less than a year imposed, 32. These should not be convictions of a CS offense, an AF, or CIMT. However, ICE may pressure the person to admit the underlying conduct, which potentially could trigger inadmissibility and ineligibility for relief (but not deportability).
  6. Weakened Defense for LPRs: Now weakened, an older defense was to create a record of conviction that does not name the CS, referring throughout to “a controlled substance” rather than, e.g., “cocaine.” Since the 2021 decision in Pereida, however, this only helps LPRs to contest deportability, and even that is not secure. Any of the above options are better, but if they are not available this one is worthwhile for LPRs. 
  7. Eliminate a prior drug conviction with PCR. Additional PCR exists for minor drug offenses.

2. Take pretrial diversion such as PC 1000 (1/1/18) if D can complete it. Because it has no guilty plea, this is not a conviction for immigration purposes. But if D is unlikely to complete the program, fight hard for a non-drug plea now rather than taking PC 1000, because in accepting PC 1000 the person must give up the right to jury trial if they should fail diversion and have to face the charges. PC 1000.1(a)(3).  If D will be put in ICE custody, D will not be able to complete PC 1000—but at least will not have a guilty plea. See link to advisory in endnote above. Other forms of pretrial diversion, such as mental health diversion (PC 1001.36) and the new misdemeanor pretrial diversion (PC 1001.95), effective 1/1/2021, to the extent there is no guilty plea required.

3. Plead to a specific non-federal controlled substance, e.g., chorionic gonadotropin. To be a deportable or inadmissible CS offense or CS aggravated felony, a state conviction must involve a substance listed in federal drug schedules. California laws include a few that are not listed there. For example, 11377-79 includes chorionic gonadotropin, which is not a federal substance, and khat, which probably is not.216Advocates can investigate this. The khat plant itself is not listed in federal drug schedules, but certain chemicals that are present in some but not all khat plants, and that come into being upon ingestion, are listed in federal schedules. Whether possession of khat itself is possession of a federal substance has been handled differently in various criminal and immigration cases. See, e.g., Argaw v. Ashcroft, 395 F.3d 521, 526 (4th Cir. 2005). The Ninth Circuit has not ruled on this issue.

If the record specifically identifies one of these (e.g., “I sold chorionic gonadotropin”), it is not a conviction of a CS offense or drug trafficking AF for any immigration purpose, whether deportability or eligibility for relief. The defense has  effect nationally. The problem is that it can be a difficult plea to negotiate—although California defenders have been able to plead guilty to 11377-79 offenses and state “chorionic gonadotropin” on the record, which is all that is required. Note that even with this defense, the person still might face some other penalties; see Part c, below.

There is a related but distinct defense: the “unspecified substance” defense, where the record is sanitized to not reveal what substance was involved (e.g., “I sold a controlled substance”). This defense was weakened considerably in 2021. See Part 6, below.

Here are key points about the specific CS defense.

a. Chorionic gonadotropin, H&S C 11377-79, is the safest non-federal CS in California. That substance is not on federal schedules as of this writing. Until the time it is placed on federal schedules, a conviction is not an immigration CS offense or CS AF.

b. Arguably California heroin is not a federally defined CS – but still not a safe plea. Because the California statutory drug schedule defines heroin more broadly than the federal statutory drug schedule does, there is a very strong argument that California heroin is not a federal CS under Ninth Circuit precedent.217Argument that heroin is not a federal controlled substance. The argument begins with the Ninth Circuit’s prior treatment of methamphetamine in the Lorenzo and Rodriguez-Gamboa cases, based on geometric isomers. See case citations below. In 2018, the Ninth Circuit held that California meth (H&S 11377-79) is not a federal CS because the chemical definition of meth set out in California drug schedules includes geometric isomers, while the federal schedule definition of meth does not. The court found that this made California meth overbroad and indivisible compared to federal “generic” meth, so that a California meth conviction was not of a federal CS for immigration purposes. But the Ninth Circuit later determined, based on unrebutted expert testimony, “that there is no such thing as a geometric isomer of methamphetamine.” Therefore the court held that meth is a federal controlled substance. United States v. Rodriguez-Gamboa, 972 F.3d 1148, 1150 (9th Cir. 2020). The Ninth Circuit did not abandon its basic reasoning or application of the categorical approach, however; it just found that the claim was factually incorrect.

The California definition of heroin has the same overbreadth as California meth does: the statutory schedule specifically includes geometric isomers of heroin, while the federal definition of heroin does not. But this time it appears that a geometric isomer of heroin—“isoheroin”—does exist. ILRC will post an expert declaration on this when it becomes available.  Meanwhile, although this should be a strong case, until there is a precedent decision criminal defense counsel should not consider this a safe plea and should seek alternatives. But if there is no other alternative, in criminal court a specific plea to heroin or isoheroin in response to a criminal charge under H&S §§ 11350-11352 appears to be better than a plea to some other substance or to no specific substance. Immigration advocates can raise this as a defense in removal proceedings.

For the opinions on methamphetamines and isomers, 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 U.S. 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.  Xx Note that Lorenzo and Rodriguez-Gamboa decisions addressing meth and geometric isomers are distinct from a 2023 federal decision finding that a California meth conviction is not a federal CS, because the California meth definition of “analog” is broader than the federal definition. See discussion of United States v. Verdugo, __ F. Supp. 3d __ (S.D. Cal. July 17, 2023) in the text.

But there is no Ninth Circuit case yet, and getting one could take years. Therefore defense counsel cannot rely on heroin as a safe plea. But if a plea to 11350-52 cannot be avoided, do try to designate the substance as heroin or isoheroin. This will permit advocates defending the person in removal proceedings to make the argument.

c. Arguably California cannabis under Prop 64 is not a federally defined CS – but still not a safe plea. Defenders should conservatively assume that cannabis under California law, including post-Prop 64, is a federally defined CS. But advocates in removal proceedings can assert that Prop 64 changed the California definition of cannabis, so that a conviction from on or after November 9, 2016 (the effective date of Prop 64) is overbroad and indivisible compared to the federal marijuana definition, and thus is not a controlled substance offense for immigration purposes. See discussion at H&S C 11357(a)(2) (current), above and at ILRC, Immigrants and Marijuana (May 2021). 

d. Recent district court decision finds that California methamphetamine is not a federally defined CS. In July 2023 a federal district court held that meth as defined under California law is not a federal CS. United States v. Verdugo, __ F. Supp. 3d __ (S.D. Cal. July 17, 2023). As Verdugo explains, this is based on the fact that California defines meth analogs more broadly than federal law does, so under the categorical approach, California meth is overbroad and indivisible. (Note that this is different from a previous argument that California meth is not a federal CS, based on meth “geometric isomers.” While that argument ultimately lost, this argument appears stronger. See discussion of the law and chemistry in Verdugo.) 

Removal defense advocates should assert this defense now. For criminal defense counsel, if the client has a few possible defense options – for example, considering PC 372.5 versus a plea meth — it may not be clear which is the safest in every case because Verdugo could be overruled or some other change could happen. Get expert help on individual cases, and see forthcoming ILRC advisory on Verdugo and California meth. Meth also is a potential plea in charges of 11364, 11370.1, and 11550.  

e. Other immigration penalties can occur even with this defense. This defense prevents a conviction of an offense relating to a federal CS. But other immigration consequences do not require a conviction of a CS, and they are a risk. These include:

  • Inadmissible as a drug trafficker. If ICE has the motivation and ability to find evidence that the person aided in trafficking (as opposed to giving away) a federally defined CS, the person can be found inadmissible without a qualifying conviction, because the government has “reason to believe” they ever participated in trafficking. INA 212(a)(2)(C). This is a factual questions and you can do little to prevent it, 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 itself was for a trafficking offense than for possession.
  • While there are some defenses, immigration authorities might pressure the person into admitting the “real” substance and thereby making themselves inadmissible and barred from some relief (but not deportable)
  • Sale, possession for sale, distribution of a CS, or offering to do this, is a CIMT,218See, e.g., Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997). probably regardless of whether the substance appears on federal drug schedules. Assume that any 11351-52 or 11378-79 will be a CIMT. Arguably sharing or selling marijuana is not a CIMT, since that conduct is normalized as a multi-billion dollar industry where such conduct is legal in some form in the majority of states.

4. Might D be a victim of human trafficking or domestic violence? Does evidence suggest that D may be a victim of human trafficking or domestic violence and is committing the drug offense under coercion? Coercion can mean under direct orders (e.g., to produce or sell drugs) or coercion arising from the victimization, without orders (taking drugs in response to despair). This could be a defense to a drug charge; a vacatur for a prior conviction; and/or a possible path to legal status. For example, San Francisco PDs have won at trial on behalf of Hondurans charged with drug sale but who were trafficked and coerced. See discussion of options at ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022) and at Advice to H&S C 11358, above.

5.  Plead to new PC 372.5 or (with less than a year imposed) PC 32. See further discussion at Advice to PC 372.5. This should not be a conviction of a CS offense, an AF, or CIMT. However, ICE may try to pressure the person to admit the underlying conduct, which could trigger inadmissibility and ineligibility for relief (but not deportability).

What it does. PC 372.5 became an option in 2023. It operates similarly to a “wet reckless” but for drug charges, giving D the option to accept the criminal penalties for the charge but avoid some immigration or other civil (e.g., housing, employment) penalties. A defendant charged with drug offense/s can ask for charge/s to be dismissed and to plead instead to being a public nuisance (PC 370) at the same offense level. Under PC 372.5(a)-(c), for this purpose 370 is punishable as an infraction, a misdo/wobblette, or a 16-2-3 wobbler. It provides that a condition of the plea was that “drug” charges (not limited to CS) were dismissed. Similar to wet reckless, the DA cannot affirmatively charge 372.5, but if defense requests it the DA will decide whether to agree.

D is convicted of being a public nuisance, PC 370. Under the categorical approach, 370 is not a CS offense, CIMT, or other removable conviction. But the plea protects some immigrants more than others; see below. 

Compare to PC 32. Felony or misd PC 32 has long been used as an informal substitute immigration plea for a drug charge, to avoid a CS conviction. PC 372.5 has similar effect, except (1) 372.5 can take a year or more without being an AF, while PC 32 cannot and (2) for better and worse, PC 372.5 directly refers to a dismissed drug charge. The upside is that some DA’s have refused to take a PC 32 plea on the grounds it is an inappropriate legal fiction, whereas 372.5 is a sanctioned alternative to a drug charge. The downside is that because immigration authorities may focus on pressuring the person to admit the underlying drug charge that PC 372.5 states was dismissed.

Which clients this best helps. It is best for LPRs trying to avoid becoming deportable, because a CS conviction is required for deportability and this is not one. It can help LPRs in other contexts (including, although this is not recommended, travel outside the U.S.) where they do not have the burden to prove they are admissible. But an LPR who applies for adjustment as a defense to removal would be in a similar state as undocumented clients, as described below. See endnote219When a plea to PC 372.5 is not necessarily dangerous to an LPR. No LPR will be found deportable for a plea to PC § 372.6, because deportability requires a conviction of a federal controlled substance.

For further discussion of being inadmissible based on a formal admission of a CS offense, see ILRC, Immigrants and Marijuana (May 2021). A defense exists based on several older BIA decisions holding that if a person’s conduct was brought to criminal court and the result was less than a conviction, e.g., because charges were being dropped, pre-trial diversion, or a conviction was vacated for cause, the person cannot be found inadmissible for “admitting” that same \conduct. See, e.g., Matter of E.V., 5 I&N Dec. 194 (BIA 1953); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968), Matter of Seda, 17 I&N Dec. 550 (BIA 1980). While that ought to protect an admission to immigration authorities that one did commit the original drug charge in a § 372.5 situation, we cannot be sure that authorities would apply the defense because – well, it’s immigration proceedings.

Regarding LPR cancellation: An LPR must have accrued seven years of residence in the United States after admission in any status in order to qualify. Under INA § 240A(d)(1), as interpreted by the Supreme Court, a person who becomes inadmissible by making a qualifying admission that they committed a controlled substance offense thereby “stops the clock” on the accrual of their required seven years of residence, as of the date of the admitted conduct. Therefore, an LPR convicted of § 372.5 should decline to make a formal admission to immigration authorities of the originally charged drug conduct, especially if that conduct occurred before they accrued the seven years. If they already admitted the conduct to immigration authorities, they can assert that the admission is not “qualifying.” As discussed above, one reason it should not qualify is that the conduct was brought to criminal court and the result was less than a conviction. See further discussion at ILRC, Eligibility for Relief: Cancellation of Removal for Permanent Residents (Dec. 2022) and ILRC, Immigrants and Marijuana, supra. 

Regarding travel outside the United States: Generally, an LPR who travels outside the United States is deemed not to be making a new “admission,” and does not to have to show that they are admissible, upon their return. However, they can lose this privilege and be deemed to be making a new “admission” to the country if they come within an exception set out at INA § 101(a)(13)(C). One of those exceptions is if authorities can prove that the LPR has “committed” an inadmissible offense. See INA 101(a)(13)(C)(v), discussed at Matter of Rivas, 26 I&N Dec. 130 (BIA 2013). It is best for LPRs charged with any drug offense not to travel outside the U.S. until they naturalize. But if an LPR convicted of PC § 372.5 does travel, that conviction alone is not sufficient for border authorities to prove that the LPR actually committed an inadmissible offense. If the LPR can just decline to answer any questions, eventually they should be permitted to enter, either because the government failed to prove that they committed a CS offense so that they did not come within INA § 101(a)(13)(C), or because they did come within § 101(a)(13)(C) but they were not in fact inadmissible, because they neither were convicted of, nor formally admitted, a CS offense. See discussion at ILRC, Immigrants and Marijuana (May 2021).

Regarding application for adjustment of status. Here the LPR has the burden to show that they are inadmissible, and adjustment as a remedy can be denied as a matter of discretion. This puts the LPR applicant in a position similar to an undocumented person applying for relief.
 and get expert advice if a situation is not clear.

This is less good for applicants for relief, which includes all undocumented people, deportable LPRs, etc. They may need to prove that they are admissible or merit a positive discretionary ruling. Immigration authorities may pressure them to admit they committed the original drug charge, which might make them inadmissible or be a negative discretionary factor. They might threaten to deny the application if the persons refuses to speak. See further discussion at Advice to PC 372.5. Immigration advocates may be able to work around this.

6. For LPRs: Keep the record clear of any specific controlled substance. 

This long-time defense was significantly weakened in 2021 and a plea to PC 372.5 (or, with a year or less, PC 32) is much safer. But if defenses 1-5, above, are not available, this may help LPRs avoid deportability charge and is worth seeking. It will not help immigrants who must apply for relief.

Defense: Defender bargains to remove any mention of a specific federal CS, e.g., “morphine” from D’s record of conviction and substitute “a controlled substance.” Because H&S C 11350-52, 11377-79 contain some substances not in the federal schedules (see #3, above), the vague record fails to prove that the offense involved a federal CS. In a plea context, the documents that must be sanitized are referred to as the “record of conviction” or Shepard documents; they are the charge pled to; the plea colloquy transcript and/or written plea agreement; the judgment; and any factual basis for the plea agreed to by the defendant. After some back and forth, the Ninth Circuit held that the defense protects all immigrants, including those applying for relief, in Marinelarena. 

Effect of Pereida. In Pereida v. Wilkinson, 141 S.Ct. 754 (March 4, 2021), the Supreme court weakened the defense in two ways. First, it rejected Marinelarena and held that the inconclusive record defense does not help an immigrant applying for relief, e.g., all undocumented people, deportable LPRs, etc. In the drug context, those people must prove that the substance was chorionic gonadotropin. But the defense does help an LPR who is contesting deportability. ICE must prove that the offense was a federal CS.

Second, in dicta the Court stated that Shepard likely never applied to immigration proceedings so that evidence from outside the record of conviction can be used to prove the specific substance. The Ninth Circuit seems to be adopting this. Going forward, this means that sanitizing the record of conviction documents may help an LPR to avoid deportability – but this is not guaranteed. LPRs who created a vague record of conviction before March 4, 2021 should have a good argument that this dicta cannot be applied retroactively. 

For further discussion see ILRC, Pereida v. Wilkinson and California offenses (April 2021). For how to create an inconclusive record of conviction, see endnote.220How to create an “inconclusive” record of conviction. NOTE: As discussed in the text, under Pereida an inconclusive record will only help an LPR to avoid a charge of deportability. It will not help any applicant for relief. Plus, Pereida included dicta that might weaken this defense, because it encourages courts to withdraw from precedent and permit ICE to use evidence from outside the record of conviction to prove the specific substance. But if this is the best strategy available for an LPR, here are instructions for how to create an inconclusive record.  

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 this 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 several details other than the damaging information, such as the substance. See People v. Holmes (2004) 32 Cal.4th 432. For example, the document could be a written plea agreement stating, “On the evening of June 15, 2022, 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.  See also N.8 Controlled Substances at www.ilrc.org/chart.
 

7. Eliminate a prior CS conviction

Vacatur per PC 1473.7, 1016.5, habeas corpus, etc. California has several types of post-conviction relief that can help immigrants; see especially PC 1473.7. See advisories at the endnote at the start of this section, in particular ILRC, Overview of California Post-Conviction Relief for Immigrants (July 2022), and see the new ILRC book, California Post-Conviction Relief for Immigrants: How to Use Criminal Courts to Erase the Immigration Consequences of Crimes (January 2023) and materials at www.ilrc.org/immigrant-post-conviction-relief.

Other PCR is specific to minor drug offenses:

Former DEJ. People who pled guilty under former PC 1000, Deferred Entry of Judgment (1996-2917) and who ever obtain dismissal under former 1000.3 can submit a free, simple application under PC 1203.43 to eliminate this “conviction” for immigration purposes. But because of ICE pushback in removal proceedings on its effectiveness, one should either (a) make it clear to the criminal court judge or at least to immigration authorities that the person believed that the DEJ promise of “no conviction” included for immigration purposes, and/or see PC 1473.2(e)(2), next.

Former DEJ or Prop 36. A PD might be able obtain a vacatur under PC 1473.7(e)(2), easily and without conflict of interest. Section (e)(2) creates a presumption of legal invalidity of the plea if there was a representation that completion of the diversion program would mean that there was no conviction or arrest record, which in fact is stated in Prop 36 and the former DEJ. To help in immigration proceedings, it would be best if the defendant files a declaration stating (honestly) that they understood this to include no conviction for immigration purposes, and relied on that in deciding to plead. See PCR advisory in endnote above.

Conviction on or before 7/14/11. For a qualifying D, first conviction for possession of a CS or of paraphernalia (but not use), or for giving away a small amount of marijuana, from on or before 7/14/11 is eliminated for immigration purposes by rehabilitative statutes like 1203.4, withdrawal per Prop 36, former 1000.3, etc. D must not have violated probation or had a prior pretrial diversion (but these limitations might not apply if D was under age 21 at time of plea.) See H&S C 11360 and see Lujan advisory link at endnote above. The Ninth Circuit found that a prior removal of a person who would have qualified for Lujan treatment was a gross miscarriage of justice.221See Vega-Anguiano v. Barr, 942 F.3d 945, 946 (9th Cir. 2019) (preventing government from reinstating the 1998 removal order).

231
H&S C 13001

Negligently risking fire

Not AF

Not CIMT because negligence

H&S C 13001

Good alternative to arson, if possible to get.

270
PC 273a(a)

Child endangerment involving conduct likely to cause GBI or death

(Wobbler)

No conviction of 273a(a) is a COV, because the minimum conduct is negligence and the statute is indivisible.222The 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.

Arguably attempt to commit 273a(a) is not a COV. There is intent, but physical force is not required. Still, try to get 364 days or less.

No conviction of 273a(a) or (b) should be held a CIMT because the minimum conduct is negligence and the statute is indivisible.223Moral 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. 4th 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).

Do not plead to attempt to commit 273a(a) or (b), because it involves intent rather than negligence and is likely a CIMT.

Crime of child abuse

The Ninth Circuit held that 273a(a) is a deportable crime of child abuse.224See Diaz-Rodriguez v. Garland, 55 F.4th 697 (2022), (deferring to the BIA’s interpretation of the generic definition of child abuse and finding that PC 273a(a) is a categorical match).

PC 273a(a)

Responding to 273a(a) charge. Consider 273a(b) and/or an immigration-neutral, age-neutral felony or misdemeanor, e.g., 236/237, 459 1st or 2nd, 594, VC 23103, or, with less than a year imposed, PC 32, 136.1(b)(1). If necessary, consider 245 or 422 (CIMTs) with less than a year, or 23152. Or  PC 1001.95 pretrial diversion is not a conviction for immigration purposes.

An offense must have minor age as an element in order to be a crime of child abuse – so an age-neutral offense can never qualify.225The BIA and courts hold that the categorical approach applies to determining whether an offense is a deportable “crime of child abuse.” Under that test, an age-neutral offense can’t possibly be divisible because the statute does not set out alternative elements, one of which requires proof of minor age. Because the statute is overbroad and indivisible, it is not a crime of child abuse for any immigration purpose, regardless of information in the ROC. See discussion at PC 243(a), above, and ILRC, Case Update: Domestic Violence Deportation Ground (2022) at www.ilrc.org/crimes.

But to prevent a mistaken charge in immigration proceedings, do try to keep age out of the record to prevent. See endnote at PC 243(a) regarding age-neutral offenses.

Emphasize to prosecution that even misdemeanor 273a(a) with no custody imposed is a deportable  crime of child abuse, and thus can cause the child to permanently lose their LPR or undocumented parent.226Even 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.

Adam Walsh Act. If ROC shows sexual conduct was involved, this might block a USC or LPR’s ability to immigrate family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

750
PC 370

Public nuisance: offensive, obstructing etc.

Not AF

Should not be a CIMT; good alternative to lewd conduct

No other removal ground. An alternative plea for drug activity?

PC 370

Maintaining or causing a public nuisance is a six-month misd. Vaguely defined conduct could include lewdness, diverting water from a stream, etc.

940
PC 487

Grand theft

See PC 484, above

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

PC 487

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.

1150
PC 503

Embezzlement

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

Yes CIMT because it involves fraud

No other removal ground

PC 503

If loss exceeds $10k, plead to PC 487 and see discussion at PC 484. If this is not possible and one must plead to 503 with a loss > $10k, follow the instructions at PC 470.

1200
PC 529(a)(3)

False personation

If the offense resulted in loss > $10k, see Advice for PC 470, and consider plea to 484/ 487

If felony, see Advice

Held not a CIMT because the minimum conduct to does not include intent to gain a benefit or cause liability.227See People v. Rathert (2000) 24 Cal.4th 200, 206 (Pen C § 529(a)(3) does not require specific intent to gain a benefit, noting that “the Legislature sought to deter and to punish all acts by an impersonator that might result in a liability or a benefit, whether or not such a consequence was intended or even foreseen.… The impersonator’s act, moreover, is criminal provided it might result in any such consequence; no higher degree of probability is required.”). See also Paulo v. Holder, 669 F.3d 911 (9th Cir. 2011) (stating that Pen C § 529(a)(3) for false personation is not a crime involving moral turpitude); Linares-Gonzalez v. Lynch, 823 F3d 508 (9th Cir. 2016) (sections 530.5(a) and (d)(2) are not categorically CIMTs, because they are not fraud since they do not require the perpetrator to obtain anything tangible of value, and they are not vile, base or deprived crimes because they do not necessarily involve an intent to injure, actual injury, or a protected class of victim; they include only intent to annoy). Good alternative to a fraud offense

No other removal ground.

PC 529(a)(3)

1 yr sentence: Counterfeiting and forgery are AFs if 1 year is imposed. PC 529(a)(3) does not have counterfeiting or forgery as elements, but to avoid possible wrong charges, try to get 364 days or less and keep ROC clear of such conduct on felonies (because 1 yr cd be imposed on PV).

SB 54. This is one of a few wobblers that do not destroy SB 54 protections limiting jail cooperation with ICE. See SB 54 advisory, www.ilrc.org/crimes.

1220
PC 4532(a), (b)

Escape

Without force (a)

With force, including simple battery (b)

Get 364 days or less on any single count, to avoid  potential AF as obstruction of justice. 

Should not be a CIMT, arguably even 4532(b), under older decisions finding seeking escape is not depraved conduct. See Advice.

No other removal ground.

PC 4532(a), (b)

See citations and further discussion at this endnote, including for CIMT.228Pen 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.

1510
Former PC 12020 Repealed 1/1/12 See current 16590 for list of individual statutes, by weapon, previously prohibited by 12020

Possession manufacture, sale, of various prohibited weapons; carrying concealed dagger

Sale of a federally defined firearm would be an AF but see Advice.

Possessing or carrying a weapon is not an AF (but is a deportable firearms offense.)

Weapon possession is not a CIMT.229Possession 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.230See, e.g. Ali v. Mukasey, 521 F.3d 737, 740 (7th Cir. 2008) (unlicensed trafficking of firearms should not be a CIMT if it is a mere failure to comply with licensing or documentation requirements); cited with approval in Efagene v. Holder, 642 F.3d 918, 923 (10th Cir. 2011).

Possession of a firearm under this statute is a deportable firearm offense. See Advice.

irearms. Trafficking in firearms is an AF, as well as a deportable firearms offense, if the state definition of firearm matches the federal definition. Here the definition of firearm appears to match: “firearm” defined in former 12020 and16590/17700 excludes antique firearms, just as the federal definition does. (Many California offenses do include antique firearms, and therefore do not have immigration consequences. See discussion at PC 29800.)

However, former 12020 includes other conduct that does not have imm consequences, such as possessing a dagger, etc. In addition, even if the offense is held to be a firearm offense, 12020 included possession of a firearm, which at least would not be an aggravated felony. Immigration advocates can explore arguments that 12020 was indivisible as to weapon or conduct. See  ILRC, How to Use the Categorical Approach Now (2021) Or assuming it was divisible, see endnote for effect of information in the ROC.231Conviction 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  ILRC, How to Use the Categorical Approach Now (2021)  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.

1560
PC 29800

Felon, addict, etc. who possesses or owns a firearm

Not AF due to antique firearms rule; see below and see also 29805, 29815(a), 29825.

Should not be CIMT but no precedent. Possession of even a sawed-off shotgun is not a CIMT, so arguably possession by a particular person of a ‘regular’ firearm is not, as this is a regulatory offense.

Not deportable firearms offense due to antique firearms rule.

PC 29800

Antique Firearms Rule: A noncitizen who is convicted of a firearms offense (selling, carrying, using, possessing, etc.) is deportable.232See 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.233See 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.234An 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.235Conviction 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.236See U.S. v. Pargas-Gonzalez, 2012 WL 424360, No. 11CR03120 (S.D. Cal. Feb. 9, 2012) (concluding that former Pen C § 12021(a) is not categorically an aggravated felony as an analog to 18 USC § 922(g)(1) (felon in possession) because § 12021 is broader in that it covers mere ownership of guns by felons), citing U.S. v. Casterline, 103 F.3d 76, 78 (9th Cir. 1996) in which the court reversed conviction under § 922(g)(1) where defendant owned a firearm but was not in possession at the alleged time. Like the former § 12021(a), the current § 29800 prohibits owning a firearm. In addition, do not identify a specific firearm in ROC.

Particularly Serious Crime: The Ninth Circuit held that a conviction for federal felon in possession potentially can be held a PSC (for purposes of CAT).237Bare v. Barr, 975 F.3d 952, 963 (9th Cir. 2020) (IJ was correct that the elements of felon in possession “potentially bring the offense within the ambit of a particularly serious crime.”)

1671
Prior, Pre-Prop 64 H&S C 11357, Prior version: Analysis of 11357 as written before Prop 64 took effect on 11/9/16

See article for more on Prop 64 and on marijuana and immigrants.238See analysis or Prop 64 at ILRC, Immigration Impact: The Adult Use of Marijuana Act (September 2016) at https://www.ilrc.org/immigration-impact-analysis-adult-use-marijuana-act.
Note that while California has legalized certain conduct relating to marijuana for adults, for noncitizens marijuana remains a federally defined controlled substance. Even without a conviction, the person could be held inadmissible if they formally admit to an immigration official that they have possessed marijuana—even if the conduct was permitted under California law. For community flyers in different languages warning immigrants not to discuss marijuana conduct with immigration officials, and for a legal Practice Advisory on marijuana and immigration, go to https://www.ilrc.org/warning-immigrants-about-medical-and-legalized-marijuana.

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.

150
PC 236, 237(a): Felony

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

Not a COV or other AF. CA Supreme Court held 237 is not divisible between violence, deceit, etc. Deceit does not involve threat or use of force.

But because there is no federal immigration decision on point, to avoid a possible wrongful charge as a COV, plead to false imprisonment by something other than force, and/or provide D with legal authority. See Advice.

The Ninth Circuit held 237 by menace is not a CIMT, and other subsections also should not be. Because the statute is indivisible, no 237  felony conviction should be a CIMT.

To avoid possible wrongful CIMT charge, plead to menace.

For further discussion and citations, see Advice.

See AF column: this is not a COV and thus 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).

Adam Walsh Act. Conviction of false imprisonment of a minor can prevent a USC or LPR from immigrating family members in the future. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.

PC 236, 237(a)

See this endnote239Felony Pen C § 237 is overbroad and indivisible as a COV and as a CIMT.

Section 237(a) makes false imprisonment “effected by violence, menace, fraud, or deceit” a felony. This appears to be a separate felony offense with its own elements, so that 236/237 is not a wobbler.

Based on state law definitions of these elements, compared with federal definitions of COV and CIMT, felony 236/237 is not a COV or CIMT. But because there is little federal immigration precedent analyzing 236/237, counsel should consider providing the below text (e.g., in phone photos or an email) to the defendant, their family or friend, or an immigration attorney if any. The danger is that an unrepresented person could be wrongly charged with and found to have been convicted of a COV or CIMT.

Indivisible between violence, menace, fraud, and deceit. The definition of felony false imprisonment at PC 237(a) is not divisible. The California Supreme Court found that “violence, menace, deceit, and fraud” are means, not elements, of felony 237(a). The court rejected the government’s argument that the felony definition at  237 “proscribes not one, but four separate felonies depending upon the means by which false imprisonment is effected… [W]e find 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.” People v. Henderson (1977) 19 Cal. 3d 86, 95, partially reversed on other grounds by People v. Flood (1998) 18 Cal 4th 470, 484. That analysis by the state Supreme Court means that the statute is not divisible. “When a ruling of that kind exists, a [ ] judge need only follow what it says.” Mathis v. United States, 579 U.S. 500, 518 (2016).

The fact that 237(a) is not divisible means that the adjudicator may not go on to review the record of conviction for purposes of the modified categorical approach. Id. If any one of the four means of committing the offense is overbroad as a COV, then no conviction of felony 236/237 is a COV. Similarly, if any of the four means is overbroad as a CIMT, no 236/237 conviction is a CIMT.

Overbroad as a COV. The minimum conduct required for guilt under felony 236/237 is not a COV. Note also that felony 236/237 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. To the extent that kidnapping is not a COV, felony 236/237 is not either, because it is defined even more narrowly than kidnapping.

  • “Fraud” or “deceit” is not a COV, because it does not require any force, including de minimis See, e.g., People v. Rios (1986) 177 Cal. App. 3d 445, 449 (father was guilty of felony 236/237 when he told his ex-wife that their baby had been kidnapped, when in fact he had taken her to live with relatives in Mexico because he believed the ex-wife endangered the child through severe neglect). Further, kidnapping by fraud under § 207(d) is not a COV. United States v. Lonczak, 993 F.2d 180, 183 (9th Cir. 1993).
  • “Menace” under 236/237 does not require the threat or use of any force, including de minimis force. It can include mere threat of arrest without probable cause. See, e.g., People v. Henderson (1977) 19 Cal. 3d 86, 95, 94 (“The conduct may involve merely the simple act of announcing without probable cause the making of a citizen’s arrest”), citing People v. Agnew, 16 Cal. 2d 655, 659 (announcement of citizen’s arrest in presence of police officers was menace under 236/237). Kidnapping under PC 207(a) also reaches the threat of arrest. People v. Majors (2004) 33 Cal.4th 321.
  • “Violence”under 236/237 has a specific definition that 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 (pulling someone a few steps toward a car before she ran away is false imprisonment by “violence” under 236/237). While this level of de minimis force has been held not to be a COV in the past, it is possible that this would change under Stokeling v. United States, 139 S.Ct. 544 (2019) (de minimis force can be a crime of violence in an offense that has overcoming the will of the victim as an element). However, even if “violence” under 236/237 were held a COV under Stokeling, and the plea was specifically to false imprisonment by violence, the conviction cannot be held a COV because 236/237 is not divisible between violence, menace, fraud, or deceit.
But to further protect the defendant, who may be unrepresented and unable to present these citations, criminal defense counsel should plead specifically to menace, fraud, or deceit rather than to violence.

Overbroad as a CIMT. Felony 236/237 by “violence or menace” is a lesser included offense of kidnapping by force or fear, Pen C § 207(a). People v. Apo (1972) 25 Cal.App.3d 790, 796). 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. Turijan v. Holder, 744 F.3d 617, 622 (9th Cir. 2014).

The Ninth Circuit held that false imprisonment under Hawaiian law is a CIMT because it requires “knowingly restrain[ing] another person under circumstances which expose the person to the risk of serious bodily injury.” Haw. Rev. Stat. § 707-721(1) (emphasis supplied). The court specifically distinguished that offense from California kidnapping, which it reaffirmed is not a CIMT. Fugow v. Barr, 943 F.3d 456, 458 (9th Cir. 2019), citing Castrijon-Garcia v. Holder. Because felony 236/237 is a lesser included offense of PC 207(a) kidnapping, 236/237 also is not a CIMT.

Similarly, false imprisonment with intent to deceive is not necessarily a CIMT. The offense can be committed with the intent to do good, whether misguided or not. See, e.g., People v. Rios (1986) 177 Cal. App. 3d 445, 449 (father was guilty of felony 236/237 when he told his ex-wife that their baby had been kidnapped, when in fact he had taken her to live with relatives in Mexico because he believed ex-wife endangered her through severe neglect).)

Felony 236/237 committed by “menace” is not a CIMT. It is a general intent crime that does not require an evil purpose, or 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 the victims. Turijan v. Holder, 744 F.3d 617, 621-622 (9th Cir. 2014) (citing People v. Islas, 210 Cal. App.4th 116, 147 (2012).

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), above. 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). for citations and further discussion of felony 236/237 as a COV and CIMT.

COV. Felony 236/237 is a good alternative to a COV such as 245, 273.5, 422. Because the minimum conduct required for guilt is low and the California Supreme Court held that the statute is not divisible, no 236/237 conviction should be a COV for any purpose, regardless of info in the ROC—including under the Stokeling decision. See discussion in above endnote.

Still, because there is not yet a BIA or Ninth Cir decision on point, immigrants could be wrongly charged with a COV. To be safer, plead specifically to deceit or menace and keep violence out of the record. Or give the defendant, imm attorney, and/or friend a photo of the COV analysis in the above endnote.

Offenses that are safer, in that there is published federal precedent that they are not an AF even with a sentence of a year or more, include 460(a), (b), 487; 594 also should be.

570
PC 476a(a)

Bad check with intent to defraud

AF if loss to the victim/s exceeds $10,000; see Advice.

CIMT. See 529(3), 530.5, to try to avoid CIMT.

No other removal ground.

PC 476a(a)

To avoid an AF based on conviction of a fraud or deceit offense where loss to the victim > $10k, see PC 484. If that is not possible, follow Advice for PC 470.

Prop 47:  Note that immigration authorities will assert they cannot give effect to a Prop 47 redesignation as a misdemeanor.240See discussion in Velasquez-Rios v. Wilkinson, 988 F.3d 1081 (9th Cir. 2021), declining to give effect to the retroactivity clause in Pen C § 18.5(a), because federal law will not give retroactive effect to a state criminal reform statute that purports to change a previously final conviction. It relied on United States v. Diaz, 838 F.3d 968, 975 (9th Cir. 2016), which declined to give effect to a Prop 47 reduction. One can argue that if the property offense at issue also is a wobbler, the reduction should be given federal effect because from its inception the wobbler had the potential to be a misdemeanor. See discussion in Velasquez-Rios at pp 1087-88 of Garcia-Lopez v. Ashcroft, 33 F.3d 334 F.3d 840, 846 (9th Cir. 2003), overruled in part by Ceron v. Holder, 747 F.3d 773, 778 (9th Cir. 2014).

999
PC 273a(b)

Child endangerment involving conduct not likely to cause GBI or death

(Misdemeanor)

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

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

Do not plead to attempt to commit 273a(a) or (b), because it involves intent rather than negligence and is likely a CIMT.

Crime of child abuse.

The BIA stated 273a(b) never is a deportable crime of child abuse.241The BIA stated that § 273a(b) is not a deportable crime of child abuse. See Matter of Mendoza-Osorio, 26 I&N Dec. 703, 710 (BIA 2016), discussed in ILRC, Practice Advisory: Cal Pen C 273a(b) is not a deportable crime of child abuse (February 2016) and ILRC, 2022 Case Update: Domestic Violence Deportation Ground (March 2022), both at www.ilrc.org/crimes. This should be an immigration-neutral offense.

PC 273a

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.

759
PC 29815

Possess, etc. firearm in violation of probation condition

Not AF.

Should not be a CIMT because this is a regulatory offense.

Should not be deportable firearms offense; see discussion in PC 29800

PC 29815

1685
VC 2800.4

Flight from peace officer while driving against traffic

Seek 364 days or less in case it would be charged as an AF as obstruction of justice.  See Advice. 

Not an AF as COV because it includes recklessness.

Yes CIMT242In 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

VC 2800.4

AF as COV. Supreme Court affirmed that reckless conduct cannot amount to a COV. See discussion of Borden v. United States (2021) at PC 207. 

AF as obstruction:  Obstruction of justice is an AF, if a year or more is imposed. Counsel should assume conservatively that VC 2800.4 could meet the definition of obstruction. See discussion of the Supreme Court decision on obstruction, Pugin v. Garland, No. 22-23 (June 22, 2023), at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).

For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence.

1765
PC 288.3(a)

Communicating with a minor or person D knew or had reason to believe was a minor, with intent to commit certain offenses 

Assume 288.3 is divisible as an AF: it is an AF only if the intended offense, plus 288.3 elements of intent and knowledge, is an AF.

Not AF: Supreme Court held that sexual conduct with a person under age 18 is not an AF as SAM; see 261.5(c). Therefore 288.3 with intent to commit 286(b)(1) 287(b)(1); 289(h) should not be. Good plea.

288.3 with intent to commit 207(a) (at least without a year imposed) should not be an AF. Arguably 288.3 and 288(c)(1), and 273a at least with less than a year, are not AFs in Ninth Cir.

If the intended offense is an AF, 288.3 is one. For example, intent to commit 209(b) or 261.

See Advice.

Ninth Circuit held 288.3 is divisible as a CIMT, based on the elements of the intended offense plus 288.3 elements:

Not a CIMT:

-Court stated that 288.3 with intent to commit 207(a) is not a CIMT

-Same should apply to 288.3 with intent to engage in sexual conduct with minor under age 18, per 286(b)(1), 287(b)(1), 289(h). Section 261.5(c) is not a CIMT, so these should not be. See Advice.

Yes a CIMT:

-Court held 288.3 with intent to commit 288(c)(1) is a CIMT (because 288.3 adds knowledge of age element, which according to the court makes 288(c)(1) a CIMT).

-Likely 288.3 with intent to commit 273a (because 288.3 will add intentionality and subtract negligence)

– any intended offenses that are CIMTs, e.g., 261

See Advice.

Should avoid a deportable crime of child abuse. See discussion here.243PC 288.3 should not be held a deportable crime of child abuse. The BIA held that the generic definition of a deportable crime of child abuse requires a child as the victim, not a police officer posing as child. See Matter of Jimenez-Cedillo, 27 I&N Dec. 782, 794 (BIA 2020) (“The Department of Homeland Security has argued that the respondent is ineligible for cancellation of removal as one convicted of a crime of child abuse under section 237(a)(2)(E)(i) of the Act, but because no actual child was ever involved in this case, we cannot make such a finding. See generally Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008) (holding that a “crime of child abuse” is an offense that “constitutes maltreatment of a child.”). Section 288.3(a) includes communication with a police officer posing as a minor, because it includes attempt. People v. Korwin (2019) 36 Cal. App. 5th 682. Therefore it is overbroad compared to the definition of child abuse in that way.

Section 288.3 also should be held indivisible. While we recommend a specific plea to conduct involving a police officer, or attempt, under the categorical approach no conviction of 288.3 should be held child abuse, even if the record identifies a minor. It should not be held divisible between an officer and a minor because the statute is not phrased in the alternative in that manner (it does not mention police officer), and that is a basic requirement for finding a statute divisible. See Mathis v. United States, 579 U.S. 500, 505 (2016) (“A single statute may list elements in the alternative, and thereby define multiple crimes”) and see generally ILRC, How to Use the Categorical Approach Now (Oct. 2021).  (It is true that the statute is phrased in the alternative for “attempt,” punishing any person “who contacts or communicates with a minor, or attempts to contact or communicate with a minor….” However, to be divisible the statute must be phrased in the alternative including the fact at issue – a police officer versus a minor – not just between attempt and actual communication. Further, attempt and actual communication are not themselves different elements in a divisible statute. See statement of elements at Syed v. Barr, 969 F.3d 1012, 1017 (9th Cir. 2020) (discussed in next endnote) and at CALCRIM 1124. Finally, all violations of PC 288.3(a) are punishable “by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.”

The BIA held that a crime of child abuse requires an actual victim, not a police officer posing as a child. Because 288.3, which includes attempt, can involve communicating with an officer posing as a child, no 288.3 should be held a deportable crime of child abuse.

Try to plead to attempt (under 288.3, not under PC 664), or better yet, specifically to communication with an officer, to make this distinction clear to an uninformed immigration judge or official. Or leave the record vague. But even if the record specifically shows a minor rather than an officer, removal defense advocates can establish that the statute is not divisible because it is not phrased in the alternative between an officer and an actual minor. The concern is for unrepresented immigrants.

PC 288.3

It appears that 288.3 can range from an immigration-neutral offense to an AF. See case citations, list of enumerated intended offenses, and further discussion here.244288.3 as a CIMT. PC 288.3 provides that any person “who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 287, 288, 288.2, 289, 311.1, 311.2, 311.4 or 311.11, or former Section 288a, involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense.”

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, together 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.

Section 288.3 with intent to commit child endangerment under PC § 273a also is likely to become a CIMT. The reason that 273a is not a CIMT is that it can be committed by negligence. Section 288.3 adds the element of intentional conduct, which likely will make the offense a CIMT. 

But other 288.3 offenses are not CIMTs. Syed found that if the intended offense is PC 207(a), then 288.3 is not a CIMT because adding its elements (knowledge of minor age, or intent to commit the offense) to those of 207(a) does not create a CIMT.

Similarly, 288.3 with intent to commit the enumerated offenses that involve consensual sexual conduct with a person under age 18, with no required age difference for the perpetrator, should not be a CIMT. See Penal Code §§ 286(b)(1), 287(b)(1), and  289(h) (respectively, consensual anal sex, oral sex, and sexual penetration with person under age 18; no age difference is required). These should not be CIMTs on their own because they do not cause sufficient harm. For example, PC § 261.5(c), which requires consensual intercourse with a minor under age 18 and also requires a three-year age difference, is not a CIMT. The elements added to these offenses by PC 288.3, such as intent or knowledge of age, do not make them a CIMT.  

Note that pleading to, e.g., PC 288.3 with intent to commit 287(b)(1) (oral sex with a person under 18) has one advantage over pleading to 287(b)(1) alone: section 288.3 should not be held a deportable crime of child abuse (because it can include an officer posing as a child; see above endnote), whereas ICE may argue that 287(b)(1) alone is a crime of child abuse, on the theory that any offense involving sexual conduct with a person under age of 18 is, under Matter of Aguilar Barajas. See discussion at PC § 286(b)(1), above.  It also is possible, however, that immigration authorities would view the § 288.3 as a more serious “premeditated” offense for purposes of discretion. See other alternatives.

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), the least serious offense. 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), we will 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, either as SAM or as a COV with a year imposed. Of these, arguably 288.3 with intent to commit 207(a), the offenses involving consensual sex with a person under the age of 18 (286(b)(1), 287(b)(1), 289(h)), and probably 288(c)(1), 273a, and 311.11 should not be an AF.

Some advantages to a plea to 288.3(a) are 

(1) it should avoid deportability for child abuse (because a posing police officer can be the ‘victim’), and so may be safer than a direct plea to, e.g., 261.5(c) or 287(b)(1) (oral sex with a person under age 18), and 

(2) the sentence may be shorter; it is the same as attempt to commit the intended offense

Plead to intent to commit sexual conduct with a minor under age 18: A plea to 288.3 with intent to engage in sexual conduct with a minor under the age of 18, under PC 286(b)(1) (sodomy), 287(b)(1) (oral sex), or 289(h) (penetration), should not be an AF or CIMT, because those target offenses are not AFs or CIMTs and the addition of 288.3 elements does not change this. 

The 288.3 plea might offer an advantage: while ICE might charge those offenses by themselves as crimes of child abuse under Matter of Aguilar-Barajas, a 288.3 conviction should not be held child abuse because the ‘victim’ can be a police officer posing as a child. See column on child abuse, to the left.

Plead to intent to kidnap, with a sentence of less than a year. The Ninth Circuit held that 288.3 with intent to commit 207(a) is not a CIMT. A kidnapping offense arguably never is a COV, but even if it were held a COV (under the Stokeling decision), it would not be an AF without a sentence imposed of a year or more. 

Beware of 288.3 with 288(c)(1), 273a. When elements of 288.3 are added to target offenses like these, they are no longer immigration neutral. 

-288.3 adds knowing or having reason to believe the victim is a minor. This is why the Ninth Circuit held that 288.3 with intent to commit 288(c)(1) is a CIMT, although 288(c)(1) alone is not a CIMT, partly due to possible mistake of age. Instead, consider a plea directly to 288(c)(1) or attempt.

-288.3 adds intentional conduct. That is why 288.3 with intent to commit 273a is a likely CIMT, just as attempted 273a would be. Section 273a itself is not a CIMT because it can be committed by negligence. But with attempted 273a, or 288.3 trying to arrange for 273a, the conduct is no longer negligent; it is intentional.  It is better to plead directly to 273a(b) or other option. 

835
PC 601

Trespass with credible threat.

Get 364 days or less to avoid AF as COV.

Assume CIMT.

As a COV, it is a deportable crime of DV if V and D share a protected domestic relationship.

PC 601

Very likely to be held a COV or CIMT because the elements.245PC 601, trespass with credible threat, is likely to be held a COV (and thus an AF if a year or more is imposed, and/or a deportable DV offense if the victim has protected domestic relationship) and a CIMT. It has the following elements: (1) defendant made a credible threat to cause serious bodily injury; (2) defendant did so with the (specific) intent of placing that person in reasonable fear of their safety or the safety of their immediate family; and (3) defendant unlawfully entered the residence or workplace of the complaining witness with the (specific) intent to carry out the threat against the target of the threat. CALCRIM 2929.

The definition of a COV under 18 USC § 16(a) includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  Other charges having the threatened use of physical force have been found to be COVs.  See, e.g., Rosales-Rosales v. Ashcroft 347 F.3d 714 (9th Cir. 2003) (“On its face, § 422 is an offense “that has as an element the … threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). Therefore § 422 meets the definition of a “crime of violence” as set forth in § 16(a).”).

It likely will be held to meet the definition of a CIMT because it involves both a “threat to cause serious bodily injury” and a specific “intent to carry out the threat.”  See, e.g., Latter-Singh v. Holder (9th Cir. 2012) 668 F.3d 1156, 1163 (finding that PC §422 is a CIMT “because 422 criminalizes only the willful threatening of a crime that itself constitutes a crime of moral turpitude.”) and see PC 273.5.

1335
PC 191.5(a), (b)

Vehicular Manslaughter

Not an AF as a COV because it involves gross negligence, whereas even a reckless offense is not a COV.

PC 191.5(b) should not be held a CIMT

Arguably 191.5(a) is not a CIMT, but it could be so charged and the law is complex. Avoid a plea to 191.5(a) if it is critical to avoid a CIMT.

No

PC 191.5(a), (b)

COV. An offense committed with recklessness is not a COV under 18 USC 16(a) definition. Borden v. U.S., 141 S.Ct. 1817 (2021). Therefore, this is not an AF even with a year or more.

CIMT. This section addresses whether 191.5(a), which requires gross negligence, is a CIMT.  (PC 191.5(b) is not a CIMT and does not require gross negligence.)

The immigration definition of CIMT includes an offense with an element of recklessness, defined as a conscious disregard of a known risk of imminent death or serious injury. There is an exception to the ‘conscious’ part: a CIMT includes a “person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication…” In that case, criminal negligence involving a risk of imminent death or serious injury may be a CIMT. See Matter of Leal, 26 I&N Dec. 20 (BIA 2012) (emphasis added) (finding Arizona reckless endangerment to be a CIMT). PC 191.5(a) involves gross negligence along with commission of certain DUI offenses, but it does not require any link between the intoxication and the lack of knowledge of risk. Compare that to the CIMT definition in Leal, requiring that the lack of knowledge is “solely by reason of voluntary intoxication.” Arguably, 191.5(a) does not come within the exception that permits gross negligence to be held a CIMT because it lacks the causality requirement. However, there is no precedent on this point and if avoiding a CIMT is paramount, counsel should avoid this plea.

485
PC 592

Fraudulently stealing water for agricultural, etc., uses

May be an AF if value of water exceeds $10k, or possibly if sentence of one year or more. See Advice.

Possible alternative to H&S C 11358

Because fraud is an element, it appears to be a CIMT

Appears not to trigger any other removal ground. But if this is pled to in response to a charge of 11358, gov’t will be on alert to seek evidence to prove the person is inadmissible because they have “reason to believe” the person engaged in drug trafficking.

PC 592

Possible alternative to a plea to 11358, which is at risk of being a drug trafficking “aggravated felony” even if the offense itself is an infraction. Section 592 is not a drug offense, although it appears to be a CIMT.

PC 592 is a 6-month misd. unless the value of the water exceeds $950 or there is a prior offense, in which case it is a wobbler.

AF: The statute identifies the offense as involving fraud, but possibly ICE would argue that it involves theft because water is “property.” To avoid that issue, avoid a sentence of a year or more imposed on any given count.

Because it involves fraud, if the amount of water taken exceeds $10,000 in value, consider a plea to PC 487 rather than 592 or get expert help on setting out the plea.

1305
PC 261(a)(4) This also applies to PC 286(f), 289(d)

Rape by fraud

Might not be an AF as rape. See Advice

Section 286(f), 289(d) should have the same analysis

Yes CIMT

No other removal ground, since this is not a crime of violence and does not have minor age as an element.

PC 261(a)(4)

See Advice on other pleas at PC 261, above

AF. The Ninth Circuit remanded to the BIA the question of whether rape by fraudulent representation, PC 261(a)(4)(D), meets the generic definition of rape. If it does not, then no conviction under 261(a)(4) is rape, because (4) is not divisible between the subsections (A) – (D).246Pen C § 261(a)(4) might not be an aggravated felony as rape. To be an aggravated felony as rape (INA § 101(a)(43)(A)), the elements of an offense must meet the federal generic definition of rape. PC 261(a)(4) is defined as sexual intercourse accomplished at the time the V is unconscious of the nature of the act due to various conditions, including intoxication, inability to understand, and, in 261(a)(4)(D), “due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose” (e.g., a doctor fraudulently represents that the conduct serves a medical purpose). The question is, does that come within the definition of “generic” rape?

In Valdez v. Garland, 28 F.4th 72, 81–82 (9th Cir. 2022), the Ninth Circuit found that 261(a)(4) is not divisible between its (A)–(D) subsections. Under the categorical approach, that means that if 261(a)(4)(D) or any other 261(a)(4) subsection of reaches conduct that is outside the generic definition of rape, then no conviction of 261(a)(4) is an AF as rape. The court noted that in 2012 the BIA had held that 261(a)(4)(D) does not meet the generic definition of rape. However, because of subsequent changes in California law and clarification of the categorical approach, the Ninth Circuit decided to remand the case to the BIA so that the BIA could newly address the question, “Does the generic federal definition of rape include consensual intercourse obtained through fraud?” Valdez at 81.

The BIA could go in either direction. The panel indicated that it would owe Chevron deference to the BIA’s holding. For this reason, defenders should advise clients there is no guarantee that 261(a)(4)(or (a)(4)(D)) will not be held to be the AF rape. However, if a plea to 261 can’t be avoided, then 261(a)(4) is the best choice. Removal defense advocates should preserve the argument that no conviction of 261(a)(4) is an aggravated felony.

Section 261(a)(4) should not be held a crime of violence, because it has no element of use or threat of physical force. Therefore, it would not be an AF as a crime of violence even if a year is imposed, and it would not be a deportable crime of domestic violence. It is a CIMT, and of course in any discretionary application it would be considered a very severe negative factor.
The same language appears in 286(f) and 289(d).

Because the BIA could hold that this is rape and the Ninth Circuit could defer, defense counsel should not rely on this defense – but if 261 is inevitable, a plea to (a)(4) is best. Removal defense advocates should raise and preserve the argument pending a BIA and then Ninth Circuit opinion.

685
PC 350(a)

Counterfeit mark on goods: create, possess for sale, sell

AF if a year or more is imposed

AF if loss > $10k, under 350(a)(2). See Advice.

Assume it is a CIMT

No other removal ground

PC 350(a)

AF: PC 350(a) must avoid both a sentence of a year or more (to avoid AF as “counterfeit”) and a loss > $10k (to avoid AF as fraud) on any single count.247Section 350 is a “counterfeiting” offense that becomes an AF if a year or more is imposed, under INA § 101(a)(43)(R). Rodriguez-Valencia v. Holder, 652 F.3d 1157, 1158 (9th Cir. 2011). It also will be held to be an offense of deceit that becomes an AF if loss to the victim/s exceeds $10,000, under § 101(a)(43)(M). A plea to 350(a)(1) should accomplish both, because it is a misdemeanor (364-day max) where loss is not > grand theft, which is $950. Or consider PC 484/487, which can take either a year sentence or a loss > $10k, but not both.

917
PC 368(e)

Elder abuse: Theft, Fraud, Forgery, 530.5 by caretaker

See 368(d), including Advice.

368(e)(1) is not an AF because the top is 364 days and $950 loss, while (e)(2) could become an AF if 1 yr or more is imposed and/or loss > $10k.

See 368(d) re the possibility that 368 by 530.5(a) is not a CIMT. But in 368(e), an additional negative factor for CIMT is that D knows V is elder and has a caretaker relationship.

No other removal ground

PC 368(e)

AF. Same analysis as 368(d).

932
H&S C 11361(b)

(b) Unlawfully gives or offers to give cannabis to a minor age 14 or older.

Offering to give should not be an AF, but in the Ninth Circuit only.

Assume that giving any amount is an AF and that defenders must avoid this. See Advice for alternatives.

Removal defense advocates should see Advice for arguments, including that California cannabis is not a federal CS.

Conservatively assume it is a CIMT, although this can be contested.

Controlled substance offense (but see Advice for argument that California cannabis is not a federal controlled substance)

Assume it is a deportable crime of child abuse (but see Advice)

H&S C 11361(b)

Defenders should try hard to avoid this and any drug offense. Consider trying for a charge that can take pre-trial diversion at PC 1000, 1001.95, or other, or a plea to 272, 273a(b), 370, 372.5, 415, etc. For felonies or strikes, PC 32 or 136.1(b)(1) – but sentence must be under 1 yr – or maybe 459 1st or 2nd degree, etc.

Argument that California cannabis is not a federal CS because the definition of cannabis is overbroad and indivisible, under the categorical approach. See Advice at 11357(a)(2). If that argument prevails, no conviction from on or after 11/9/16 of a cannabis offense will be a drug trafficking AF or a CS offense for immigration purposes. Defenders should not rely on this, but advocates in removal proceedings can raise the defense.

AF. See citations in this endnote.248H&S C § 11361(b) as an AFOffering to give or sell a CS (controlled substance) is not an AF (aggravated felony), in the Ninth Circuit only. See, e.g., U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc) (H&S C § 11352 is divisible between types of conduct, because offering is not an AF) and discussion at 11379.

Apart from the Ninth Circuit rule on offering, the general rule is that a state CS offense that does not involve commercial trafficking, such as giving a CS away for free, also is an AF if the state offense is analogous to a federal drug felony. Giving away a CS generally is a federal felony and thus a drug trafficking AF, but giving away a “small amount of marihuana” is a federal misdemeanor, with a potential sentence of up to one year. See 21 USC § 841(b)(4) and Moncrieffe v. Holder, 569 U.S. 184, 193-99 (2013), discussed in endnote above. This is why giving away cannabis in violation of § 11360(a) is not an AF.  But does the added element of giving cannabis to a minor age 14-17 raise the offense to a federal felony? It appears so, because it appears that this is analogous to a federal felony under 21 USC § 859(a). That section provides that an adult who gives a CS to a person under age 21 is

subject to (1) twice the maximum punishment authorized by section 841(b) of this title, and (2) at least twice any term of supervised release authorized by section 841(b) of this title, for a first offense involving the same controlled substance and schedule. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a term of imprisonment under this subsection shall be not less than one year. The mandatory minimum sentencing provisions of this subsection shall not apply to offenses involving 5 grams or less of marihuana.

If the potential one-year sentence is doubled to a potential two years, that could make the offense a federal felony and thus an AF.

(A possible argument for removal defense advocates concerns the last sentence, the 5 grams of marijuana exception for “mandatory minimum sentencing provisions”. Immigration advocates might argue that that sentence means that the potential sentence is not doubled, if the CS was just 5 grams of marijuana. If that were the case, then a 11361(b) would remain analogous to a federal misdemeanor if the record shows 5 grams or less of marijuana. But the Ninth Circuit did not read it that way in United States v. Durham, 464 F.3d 976, 987 (9th Cir. 2006). There the court held that under 859(a), a mother who had her baby breathe in marijuana was subject to a potential sentence of two years – double the one-year potential sentence for giving away a small amount of marijuana under 21 USC 841(b)(4). Without discussion, the court appeared to read the last sentence’s 5-gram exception that applies to “mandatory minimum sentencing provisions” to apply to the requirement of a minimum term of imprisonment of one year, not to the doubling of the potential sentence. That means that even 5 grams of marijuana would have a potential two-year sentence and be a felony. Arguing otherwise is likely to lose, although it may not be frivolous (partly because the last sentence on the exception discusses the “mandatory minimum sentencing provisions” in the plural, while there appears to be just one provision). As always, while pursuing an untried argument, immigration advocates should investigate the possibility of obtaining post-conviction relief to vacate the conviction.
The best ways to avoid a drug AF here, in order of preference, are to win at trial or negotiate to (a) a non-drug offense, see above; (b) 11357 possession, or if possible diversion; (c) 11360 offering to give away a small amount, or just giving away a small amount, if possible to a specific person who is age 21 or older; and (d) 11361(b) offering to give away, which should not be an AF in proceedings within the Ninth Circuit. Removal defense advocates can investigate an argument that 11360(b) offering to give away, or giving away, “less than 5 gm” of cannabis is not an AF, but this is not predicted to win at this time.

Why these? First, offering to give (or sell) a CS is not an AF, in the Ninth Circuit only. See 11379. Second, nationally, while giving away a CS generally is a drug trafficking AF, giving away a “small amount of marijuana” is not an AF; thus 11360 is not an AF. But giving away a small amount of mj to a minor, 11361(b), is not secure.

It’s also possible that the circumstance specific analysis could be used here, so that even conviction of an 11360 offense, which does not have a minor recipient as an element, could be held an aggravated felony if the facts show that the recipient in fact was under age 21, under the circumstance specific approach. That is why we recommend that in the case of 11360 as a substitute plea, one should identify a specific person 21 years or older if possible.

CIMT. The BIA has held that giving a CS away for free is a CIMT. But because two thirds of U.S. states permit sale of medical or recreational mj, arguably giving away (or selling) mj now is a “regulatory” offense and not a CIMT. Arguably this applies to giving it to a 17-year-old, like the non-CIMT of giving or selling liquor to a minor. Defenders should not rely on this, but removal advocates should raise it.

Child abuse. The issue may turn on whether, under the categorical approach, mj is sufficiently “harmful” to a 17-year-old. Defenders should not rely on this, but removal defense advocates can argue that, like selling or giving alcohol to a 17-year-old, this does not rise to the level of child abuse.

183
B&P C 2052

Unlicensed practice of medicine

Not an AF

Should not be a CIMT because it’s a regulatory offense. See B&P C 25658.

No Should not be a conviction of a controlled substance (CS) offense, but see other defense options at H&S C 11377. See Advice.

B&P C 2052. See also B&P C 2051.

This wobbler might be accepted as a substitute for a drug charge. (For example, it was extended to an owner of a medical practice who did not themselves practice249See, e.g., People v. Perry, No. D054821, (Cal. Ct. App. Jul. 29, 2010) (unpublished) (upholding conviction of owner of medical marijuana practice despite the fact that the person didn’t treat patients himself, because “the statute makes no distinction between the practice of medicine and the business side of managing a medical practice”).). Because it has no element relating to specific substances it never should be held a CS offense, but best practice is to remove mention of specific CS in all documents in record of conviction

10
BP C 4080

Dangerous Drugs, Devices must be open to inspection

No

No

Should not be a conviction of a CS offense but see other defense options at H&S C 11377. See Advice.

B&P C 4080

The statute uses the word “drug” and “device” which are overbroad and indivisible as a CS offense. While not legally required, best practice is to remove mention of specific CS in all documents in record of conviction. See BP 4022 (drug defined); BP 4023 (device defined)

12
H&S 11352.1(b)

Unlicensed furnishing or dispensing prescription drug, CS, or “dangerous” drug or device.250A “dangerous drug” or “dangerous device” is defined generally as a drug or (medical) device unsafe for self-use. (B&P 4022, 4023.) These cannot ordinarily be furnished without a prescription. (See B&P 4059 et seq.). A “drug” is defined at H&S C § 11014 to include more substances than those included under the federal Controlled Substance Act; it is overbroad and indivisible as a controlled substance offense for immigration purposes.

Not an AF

Should not be a CIMT because it appears to be a regulatory offense, but no case precedent.251See, e.g., Dodd v. State of California Veterinary Med. Bd., No. A124052, 2009 WL 4643931, at *1 (Cal. Ct. App. Dec. 8, 2009) (unpublished) (licensed veterinarian offering alternative medicine).

Should not be controlled substance offense.

H&S 11352.1(b)

Should not be held divisible between drug, CS, and device.252See CALCRIM 2966, which does not require a jury to decide unanimously between alcohol, drugs, or controlled substances.Best practice is to plead to “dangerous device” and sanitize all documents in record of conviction.

105
H&S 111440

Manufacture, sell, deliver, hold, or offer for sale any misbranded drug or device253A “device” is an instrument, apparatus, machine, implant, in vitro reagent, or contrivance, including its components, byproducts, or accessories, used in the diagnosis or treatment of a human or other animal or “[t]o affect the structure or any function of the body of a human or any other animal.” B&P 4023. “[D]evice” does not include contact lenses or prosthetic or orthopedic device not requiring prescription.  Id. A “drug” is defined at H&S C 11014 to include more substances than those included under the federal Controlled Substance Act, and thus is overbroad as compared to a “controlled substance.”

Not an AF

Should not be a CIMT because it appears to be a regulatory offense, but there is no case precedent.

Should not be CS offense, as the term “drug” is overbroad and indivisible.

H&S C 111440

This might not be divisible between drug and device, and the term “drug” is not divisible. Still, while this is not legally necessary, best practice is to plead to “device” and sanitize all documents in the record of reference to a federal CS.

Consider defenses at 11377 before pleading to this offense.

285
PC 148.10

Causing serious bodily injury or death while resisting arrest

Yes assume AF as obstruction of justice if a year or more is imposed. See Advice.

Shd not be a COV 

Arguably not a CIMT. See Advice.

This means that if a sentence of a year or more can be avoided, this is not a removable offense.

No other removal ground. 

AF.  Obstruction of justice is an AF, if a year or more is imposed. Counsel must assume conservatively that PC 148.10 meets the definition of obstruction. See discussion of the Supreme Court decision on obstruction, Pugin v. Garland, No. 22-23 (June 22, 2023), at Advice to PC 32, above, and at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).

If a year or more sentence is required, consider safer offenses such as 236/237, 487, 459/460(a) or (b), 591, 594, or possession of a weapon. 

For information on how to structure a sentence to avoid a year for immigration purposes, see § N.4 Sentence.

CIMT, COV. Arguably 148.10 is not a COV or CIMT because it can be committed with no contact, no recklessness, and no intent beyond escape. For example, conviction was upheld when a suspect ran away from officers and the officers fell and injured themselves while pursuing the suspect in the dark.254Pen C 148.10 covers injury an officer sustains while they chase an individual who has fled from police but has not used or risked force.  People v. Superior Ct. (Ferguson), 132 Cal. App. 4th 1525, 1535 (2005) (running away from officer constitutes resisting arrest, and when officers injured themselves while pursuing the person on foot at night, this was sufficient for guilt under PC § 148.10).  See also United States v. Medina-Fructuoso, 472 F. App’x 758, 759 (9th Cir. 2012), an unpublished decision where parties agreed that PC § 148.10 is not a crime of violence.

Unlike PC § 243(d), which involves de minimis force (and which the Ninth Circuit, arguably incorrectly, held is a crime of violence), § 148.10 does not require any force at all used against another person. Accordingly, it should be more analogous to the precedent preceding US v. Perez. Before Perez, 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.

425
PC 372.5 (effective 01/01/2023)

Public nuisance  under PC 370 includes anything injurious to health, etc.

Punishable under PC 372.5

(a) infraction; (b) misdo or infraction; or

(c) 16-2-3 felony or misdo

Not AF

Not an AF as “drug trafficking” b/c PC 370 is overbroad and indivisible.

But better option is to plead to an immigration-neutral non-drug offense, especially for persons who must apply for relief.

See Advice

Not CIMT

Public nuisance is not a CIMT. 

Not a CSO conviction. 

Under the categorical approach, 370/372.5 cannot be a federally defined CS conviction because it has no element relating to CS. PC 372.5 does not admit to a CS offense, and “drug” in the statute is overbroad and indivisible compared to definition of CS. See 372.5(d). 

Inadmissible if “admits” CS offense?

Immigration authorities may pressure the person to formally admit to the original CS offense, in an effort to make the person inadmissible, or they may deny relief as a matter of discretion. Immigration advocates should resist this. 

Might be inadmissible for “reason to believe” trafficking if there is sufficient evidence.  

See Advice.

PC 372.5 

For more information, see discussion at H&S C 11377 and see ILRC, How to Defend Immigrants Charged with Drug Offenses, including PC 372.5 (2023). See also ILRC, Fact Sheet on PC 372.5 which, e.g., can be provided to prosecutors.

What it does. PC 372.5 allows the parties to agree to plead to public nuisance in lieu of the drug charges (much like a “wet reckless” in lieu of DUI charges).  Similar to a wet, the DA cannot affirmatively charge 372.5, but if defense request it DA will decide whether to agree.  D can plead to public nuisance as felony, misdemeanor or infraction under PC 372.5(a)-(c) and the drug charges will be dismissed.  

D pleads to being a public nuisance, PC 370. Under the categorical approach, 370 is not a conviction of a CS offense, CIMT, or AF. But the plea still helps some clients more than others, because some inadmissibility grounds do not require a conviction; see below. 

Compare to PC 32. Felony or misd PC 32 has long been used as an informal substitute immigration plea for a drug charge to avoid a CS conviction. PC 372.5 has similar effect, except (1) 372.5 can take a year or more without being an AF, while PC 32 cannot and (2) PC 372.5 directly refers to dismissed drug charge. While this reference may make some DA’s more willing to accept the plea, it also make immigration authorities more likely to try to punish the person by seeking to find them inadmissible without a conviction (if the person actually has to prove they are admissible. 

Which clients this best helps. Conviction of 372.5 should not make a non-USC deportable. That would require conviction of an AF, CS offense, or CIMT. But 372.5 does not entirely protect the person from being inadmissible under grounds that do not require a conviction.

LPRs. Conviction of 372.5 will not make an LPR deportable. 

It may help LPRs who travel outside the US. (although this is NOT recommended) or who have become deportable but can apply for relief where they do not have the burden to prove they are admissible. But an LPR who applies for adjustment of status as a defense to removal must show they are admissible. They face the same problem as undocumented clients, described below. 

See endnote on LPRs255When a plea to PC 372.5 is not necessarily dangerous to an LPR. No LPR will be found deportable for a plea to PC § 372.6, because deportability requires a conviction of a federal controlled substance.

For further discussion of being inadmissible based on a formal admission of a CS offense, see ILRC, Immigrants and Marijuana (May 2021). A defense exists based on several older BIA decisions The BIA has held that if a person’s conduct was brought to criminal court and the result was less than a conviction, e.g., due to charges being dropped, the person cannot be found inadmissible for “admitting” that same conduct. See, e.g., Matter of E.V., 5 I&N Dec. 194 (BIA 1953); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968), Matter of Seda, 17 I&N Dec. 550 (BIA 1980). While that ought to protect an admission to immigration authorities that one did commit the original drug charge in a § 372.5 situation, we cannot be sure that authorities would apply the defense because – it’s immigration proceedings.

Regarding LPR cancellation: An LPR must have accrued seven years of residence in the U.S. after admission in any status in order to qualify. Under INA § 240A(d)(1), as interpreted by the Supreme Court, a person who becomes inadmissible by making a qualifying admission that they committed a controlled substance offense thereby “stops the clock” on the accrual of their required seven years of residence, as of the date of the admitted conduct. Therefore, an LPR convicted of § 372.5 should decline to make a formal admission of the originally charged drug conduct, especially if that conduct occurred before they accrued the seven years. If they already admitted the conduct to immigration authorities, they can assert that the admission is not “qualifying.” As discussed above, one reason it should not qualify is that the conduct was brought to criminal court and the result was less than a conviction. See further discussion at ILRC, Eligibility for Relief: Cancellation of Removal for Permanent Residents (Dec. 2022). 

Regarding travel outside the United States: An LPR who travels outside the United States is deemed not to be making a new “admission,” and not to have to face the grounds of inadmissibility, upon their return. However, they can lose this status and be deemed to be making a new “admission” to the country, if they come within an exception at INA 101(a)(13)(C). One of those exceptions is if authorities can prove that the LPR has “committed” an inadmissible offense. See INA 101(a)(13)(C)(v), discussed at Matter of Rivas, 26 I&N Dec. 130 (BIA 2013). It is best for LPRs charged with any drug offense not to travel outside the U.S. until they naturalize. But if an LPR conviction of PC 372.5 does travel, that conviction alone is not sufficient for border authorities to prove that the LPR actually committed an inadmissible offense. If the LPR declines to answer any questions, eventually they should be permitted to enter, either because the government failed to prove that they committed a CS offense and thus came within INA § 101(a)(13)(C), or because they did become subject to admissibility but they were not in fact inadmissible because they neither were convicted of, nor formally admitted, a CS offense. See discussion at ILRC, Immigrants and Marijuana (May 2021).

Regarding application for adjustment of status. Here the LPR has the burden to show that they are inadmissible, and adjustment as a remedy can be denied as a matter of discretion.  This puts the LPR applicant in a position similar to an undocumented person applying for relief.
and get expert advice if a situation is not clear. 

Undocumented people; inadmissibility without a CS conviction. All undocumented clients must apply for immigration relief in order to remain lawfully in the U.S. Most but not all forms of relief require them to prove they are admissible, as well as deserving of a positive exercise of discretion. 

Two grounds of inadmissibility linked to CS do not require a conviction and thus are not entirely protected by 372.5. 

First, a person who makes a qualifying admission that they committed a CS offense is inadmissible. Immigration authorities may pressure the person to “admit” to a federal-CS offense, to make themselves inadmissible (although BIA case law indicates that if conduct was brought to court and charges dropped, admission of that same conduct should not trigger inadmissibility.256Several older BIA decisions have found that one is not inadmissible for admitting a CIMT or CS offense, if that conduct was brought to criminal court and the result was less than a conviction, e.g., due to charges being dropped. See discussion in the above endnote of this principle and see Matter of E.V., 5 I&N Dec. 194 (BIA 1953); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968), Matter of Seda, 17 I&N Dec. 550 (BIA 1980).) Even without a formal admission, information about the underlying conduct, or just their refusal to discuss it, might be a basis for a discretionary denial. If instead they had pled to a different, non-CS related offense, there likely would be less pressure. 

Second, if immigration authorities have probative and substantial evidence to support “reason to believe” the person ever assisted or participated in trafficking in a federal CS, they are inadmissible. The 372.5 in response to trafficking charge may inspire ICE to seek that. This is a fact-based removal ground and evidence is not limited to the record or the person’s own admissions. Evidence of sale, possession or cultivation for sale, may be sufficient for this ground (although dropped charges alleging sale should not), so defenders can only do so much. See discussion in HSC 11379

Still, removal defense counsel may be able to prevail despite this. 

Note that in every case, 372.5 or 32 are far better than conviction of an offense relating to a federal CS. (The only exception might be for a non-USC who would not be destroyed by a possession conviction, e.g., an asylee or refugee, and who thinks a plea to possession will help prevent inquiries into whether there is “reason to believe” they trafficked.) 

In sum, the best resolutions for a drug charge in order are 

1. No conviction (e.g. dismissal or pretrial diversion)

2. Conviction of a substitute immigration-neutral offense that does not relate to drugs, or conviction of an offense relating to specific non-federal substance. 

3. Plea to misdo PC 32, PC 372.5 or (with less than a year) felony PC 32

See discussion of defense strategies at 11377, above.

Factual basis for the plea: Best practice is to avoid a record that describes drug conduct. If possible, state as a factual basis conduct that is charged under 370 (loud noise, etc.). Or decline to state specific facts under People v. Palmer, 58 Cal.4th 110 (2013). See Advisory, above.

945
PC 836.6

Escape or attempted escape from (a) sheriff custody or (b) officer custody after arrest

Misdemeanor

or

Wobbler if forcible escape causes officer injury

Misdemeanor: Never AF as obstruction because maximum sentence is 364 days.(But pre-2015 misdos that have sentence of 1 year may be so held)

Wobbler: Get 364 or less to avoid AF as a COV or obstruction 

Misdo: Should not be CIMT. See PC 4532(a)

Wobbler: Likely CIMT, but a plea to “offensive touching” might prevent this.257Pen C 836.6 as a CIMT.  Like Pen C § 243(d), “force or violence” in 836.6 can be committed by a mere offensive touching that somehow causes serious bodily injury. (See Cal Crim Jury Instructions 2763). But ICE may assert that 836.6 is categorically a CIMT, because that level of injury must mean that real violence was used and harm was intended. Defenders should conservatively assume it will be so held, but immigration advocates can see discussion of Pen C § 243(d) and United States v. Perez, 932 F.3d 782 (9th Cir. 2019). There the Ninth Circuit (arguably incorrectly) held that 243(d) is a COV; however, PC 243(d) has been held not to be a CIMT. See also ILRC Practice Advisory, Ninth Circuit Holds California Penal Code 243(d) is a Crime of Violence in U.S. v. Perez (2019), https://www.ilrc.org/resources/practice-advisory-ninth-circuit-holds-calif-pen-c-243d-crime-violence-us-v-perez. See Pen C 243(d) and see Advice.

No other removal grounds. See PC 4532(a). 

PC 836.6 AF.  Defenders should conservatively assume that PC 836.6 as a wobbler is a potential AF as obstruction of justice or as a COV, if a year or more is imposed.258Pen C § 836.6 as an AF.  As a wobbler, PC 836.6 , escape or attempted escape, is a potential AF if a year or more is imposed as either obstruction of justice or a crime of violence (COV).

Obstruction of justice is an AF if a year or more is imposed. 8 USC § 1101(a)(43)(S). While obstruction is vaguely defined (see, Pugin v. Garland in discussion of Pen C § 32, above), defenders should assume that it includes intentional interference with an investigation or proceeding or punishment resulting from a completed proceeding. Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 449 (BIA 2018).

A COV is an AF if a year or more is imposed on a single count. 8 USC § 1101(a)(43)(F).  Section 836.6 criminalizes escape by “force or violence” that proximately causes “serious bodily injury” of an officer. Under United States v. Perez, 932 F.3d 782 (9th Cir. 2019), these two additional elements are likely to cause immigration authorities to find this also constitutes a crime of violence, even though the offense does not have use of force beyond a mere offensive touching, or intent to cause the injury, as an element. (See Cal Crim Jury Instructions 2763). See discussion of Perez at Pen C 243(d) and see critique at ILRC, Ninth Circuit Holds California Penal Code 243(d) is a Crime of Violence in U.S. v. Perez (2019), https://www.ilrc.org/resources/practice-advisory-ninth-circuit-holds-calif-pen-c-243d-crime-violence-us-v-perez. It is possible that a specific plea to an offensive touching would prevent a COV finding, although that still would leave the obstruction risk.

For strategies to avoid a year for immigration purposes, see N.4 Sentence.

Alternatives: To avoid an AF if a year is required, consider PC 236/237, 459, 591, 594, or even 207 (but this is less sure). To avoid a CIMT, consider misd 836.6 or, with a sentence of less than a year, misd or felony 32, 69, 148(a), 136.1(b)(1).

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