Offense
Kidnapping
(a) “forcibly, or by any other means of instilling fear”
(d) by force or fraud
Aggravated Felony (AF)
PC 207(a), (d) have been held not to be COVs. See Advice.
For (a), best practice is to plead to “fear” rather than “force.”
As always, get 364 days if possible. See Note: Sentence
Crime Involving Moral Turpitude (CIMT)
Ninth Circuit held that 207(a) is not a CIMT. 1The Ninth Circuit held that a conviction for kidnapping under Pen C § 207(a) is not categorically a crime involving moral turpitude because it can be committed with good or innocent intent when the defendant uses verbal orders to move a person, who obeys for fear of harm or injury if they don’t comply. See Castrijon-Garcia v. Holder, 704 F.3d 1205, 1217-18 (9th Cir. 2013), overruled on other grounds by Ceron v. Holder, 747 F.3d 773, 782 n.2 (9th Cir. 2014) (en banc). This holding was reaffirmed in Syed v. Barr, 969 F.3d 1012, 1018 (9th Cir. 2020) (holding that communicating with a minor under PC 288.3 is divisible as a CIMT because it includes 207(a), which is not a CIMT, as an intended offense, citing Castrijon-Garcia). Section 207(e) also includes very minor conduct.
207(d), by force or fraud, might be a CIMT.
Other Removal Grounds
Because it is not a COV, 207(a), (d) is not a deportable crime of DV. But if it is critical to avoid deportability, consider offenses such as PC 32, 136.1(b)(1) (avoid a year on each), felony 236/237 (although no precedent), 243(e), 459/460(a) or (b) or others.
Child abuse: Because 207(a), (e) can be committed by simply moving an unresisting minor in violation of law, without risking harm, it should not be held to be child abuse.
Advice and Comments
PC 207(a), (d)
COV. For citations and further discussion of Dimaya, Stokeling, Borden, and the definition of COV in general, see this endnote. 2Definition 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, 584 U.S. 148 (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 an offense such as Pen C §§ 236/237(a) is not a COV. 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 https://nipnlg.org/sites/default/files/2023-08/2018_26Apr_sessions-v-dimaya.pdf.tp://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., 586 U.S. 73 (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” 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 minimis 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).
Stokeling should not govern, however, if no force (as opposed to de minimis force) is used to overcome the victim’s resistance. This is one reason that offenses such as PC 207(a) and 215 have been held not to be COVs: they can be committed by force or “fear,” and fear may not involve any threat or use of force (e.g., it could be caused by a (fraudulent) threat of arrest or legal consequences). See, e.g., discussion in Gutierrez v. Garland, 106 F.4th 866, 872-874 (9th Cir. 2024), which post-Stokeling held on this basis that PC 215 is not a COV. In addition, reckless or accidental use of force is not a COV under Stokeling, which is another reason that PC 211 and 215 are not COVs. See discussion at Gutierrez, 106 F.4th at 875-876.
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)). However, Borden did not reach the issue of whether the “extreme recklessness” or “depraved heart” required for an offense like voluntary manslaughter is a COV. The Ninth Circuit held that this mens rea supports a COV, and stated in dicta that PC 192(a) is a COV. See discussion of U.S. v. Draper, 84 F.4th 797 (9th Cir. 2023) at PC 192(a).For citations and further discussion of PC 207 as a COV, see this endnote. 3Pen C § 207(a) as a COV. In Delgado-Hernandez v. Holder, the Ninth Circuit held that PC 207(a) is not a crime of violence (COV) under 18 USC § 16(a) because it prohibits taking the person “forcibly, or by any other means of instilling fear,” and “fear” can be committed without any use or threat of force.
Our analysis on this point begins and ends with the plain text of the statute. Because kidnapping under § 207(a) can be committed by “any means of instilling fear” instead of by force, § 207(a) does not include “the use … of physical force” as an element of the crime. 18 U.S.C. § 16(a). See United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir.1988) (holding that kidnapping under the Model Penal Code does not qualify as a crime of violence under a provision analogous to 18 U.S.C. § 16(a) because it may be achieved through trickery or deceit rather than force). As a result, the “force” element of § 207(a) does not categorically qualify the kidnapping as defined by the statute as a crime of violence under 18 U.S.C. § 16(a).
Delgado Hernandez v. Holder, 697 F.3d 1125, 1127 (9th Cir. 2012). (The court found that PC 207(a) was a COV under a different definition, 18 USC 16(b), but that holding has no effect because the Supreme Court found 18 USC16(b) to be unconstitutional in Sessions v. Dimaya, 584 U.S. 148 (2018).)
In the quote above, the court stated that use of force is not an “element” of the crime, indicating that force and fear are means, not elements, of the offense. This indicates that under the categorical approach, the statute is not divisible between force and fear. Therefore no conviction under PC 207(a) requires use of force and no conviction is a COV. See also Gutierrez v. Garland, 106 F.4th 866, 877 (9th Cir. 2024), holding that the term “force or fear” in carjacking, PC 215, is not divisible and citing U.S. v. Dixon, 805 F.3d 1193, 1198 (9th Cir. 2015), holding the same for robbery, PC 211. But because immigration authorities may not know about these holdings, the best practice is to plead specifically to “instilling fear.” Also, at this writing it is not determined whether Gutierrez v. Garland might be reheard en banc.
Despite Delgado-Hernandez, ICE might assert that § 207(a) is a COV under Stokeling v. U.S., 586 U.S. 73 (2019), discussed in the above endnote. Stokeling held that, due to the nature of the confrontation, use of even de minimis force to overcome the resistance of the victim in a Florida robbery offense was a COV. But kidnapping under PC 207 is not a COV under Stokeling, because while Stokeling requires at least de minimis force, PC 207(a) can be committed with no use or threat of force, for example, by threatening arrest. See, e.g., People v. Majors (2004) 33 Cal.4th 321 (threat of arrest satisfies force or fear requirement for kidnapping). In fact, in Gutierrez v. Garland, supra, the court specifically held that PC 215, carjacking, is not a COV under Stokeling because the term “fear” need not involve any threat or use of force. Gutierrez, 106 F.4th at 873-878.
Pen C § 207(d) (force or fraud) is not a COV. In Delgado-Hernandez, the Ninth Circuit noted that kidnapping by fraud under § 207(d) is not a COV under the 18 USC 16(a) definition. Delgado-Hernandez v, Holder, 697 F.3d 1125, 1128 (9th Cir. 2012), citing United States v. Lonczak, 993 F.2d 180, 183 (9th Cir. 1993), holding that PC 207(d) is not a COV under a federal standard identical to 18 USC § 16(a).
Section 207(d) (force or fraud) is not a COV.
Section 207(a) (forcibly or by any means of instilling fear) is not a COV, because “fear” need not involve a threat or use of force; for example, it can involve a (wrongful) threat of arrest. Force and fear are means of committing the offense, not separate elements. Therefore, under the categorical approach no conviction of 207(a) is a COV because the statute is overbroad and indivisible.
While not legally necessary, best practice is to take two additional steps to help protect your client in immigration proceedings. First, try to plead specifically to kidnapping by fear rather than force, to avoid any confusion. Second, as always, try to get 364 days or less on any single count. But if 364 is not possible, 207 should not be held a COV and is a reasonable choice for a year or more. See also case holding that carjacking by “force or fear” is not a COV under a similar basis, discussed at PC 215.
Discretion: While kidnapping should avoid being a removable offense, it will be a strong negative factor for discretion and a likely bar to asylum as a PSC.
Adam Walsh Act. Conviction of kidnapping a minor other than by a parent triggers Adam Walsh Act, which can block an LPR or USC from immigrating family members. Assume gov’t can use evidence of age from outside the ROC. See § N.13 Convictions that Bar the Defendant from Petitioning for Family Members: the Adam Walsh Act.