Offense
Kidnapping
Aggravated Felony (AF)
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.
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.
Other Removal Grounds
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.
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, 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 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).
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.3Pen 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, 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.