Recent Developments Affecting Criminal Defense Of Noncitizens In The Ninth Circuit

by Katherine Brady and Angie Junck

The following summary is designed to aid state criminal defense counsel representing noncitizen defendants. 

Please also see on-line resources at www.ilrc.org/criminal.php.  These include a two Quick Reference Charts and Notes, which analyze immigration consequences of convictions for California and for Arizona offenses.  The “Notes” are short articles that discuss key aspects of defending immigrants and provide practice advisories, under California and Arizona law. We will reference the Note that corresponds to each of these update sections, for additional reading.  Defenders in Washington state can access extensive materials from the Washington Defenders immigration project; go to www.defensenet.org.  Defense counsel from states other than these three also can consult the California Notes, which provide general information about defense of noncitizens under Ninth Circuit and administrative law.  Additional excellent on-line resources are www.criminalandimmigrationlaw.com, the website of the Law Offices of Norton Tooby; www.nationalimmigrationproject.org, the National Immigration Project of the National Lawyers Guild; charts of other states’ offenses and curricula for training at www.nlada.org; and practice aids and immigration resources at www.nysda.org.

In February 2006 the Ninth Edition of California Criminal Law and Immigration, which will be retitled Immigration and Criminal Law in the Ninth Circuit, will be available from www.ilrc.org.

Summary and Table of Contents

1.      During the probationary period, a trial court has authority to reduce the jail time imposed as a condition of probation in order to avoid immigration consequences.  People v. Segura (Second Appellate District, October 26, 2006).

2.      Accessory after the fact and misprision of felony are held crimes involving moral turpitude.  Navarro-Lopez v Gonzales, 455 F.3d 1055 (9^th Cir. 2006), Matter of Robles, 24 I&N Dec. 22 (BIA 2006).

3.      Reckless infliction of injury is not a crime of violence or domestic violence offense (ARS §13-1203(a)(3)); Ceron-Sanchez, Park overruled.  Fernandez-Ruiz v Gonzales, __ F.3d __ (9^th Cir. October 26, 2006)(en banc).

4. An offense that can be violated by mere offensive touching is not categorically a “crime of violence” and therefore not categorically a “crime of domestic violence.”  Neither is it a crime involving moral turpitude.  Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9^th Cir. 2006); Singh v. Ashcroft, 386 F.3d 1228 (9^th Cir. 2004); Matter of Sanudo, 23 I. & N. Dec. 968 (BIA 2006).

5. Immigration authorities cannot prove a domestic relationship in a California offense by using information from dropped charges, or from a requirement of domestic violence counseling or a stay-away order naming the victim.  Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9^th Cir. 2006). 

6. The Supreme Court will decide whether felony simple possession of a controlled substance is an aggravated felony, in immigration or federal criminal proceedings.  Lopez v. Gonzales (No. 05-547); Toledo-Flores v. U.S. (No. 05-7664).

7. The Supreme Court will decide whether a temporary taking is “theft” for aggravated felony purposes, and whether aiding and abetting an aggravated felony is itself an aggravated felony.  Gonzales v. Duenas-Alvarez  (No. 05-1629).

8. Conviction of consensual sex with a person under the age of 18 is an aggravated felony as “sexual abuse of a minor” in immigration proceedings occurring within the Ninth Circuit, although not necessarily in federal criminal proceedings.  Afridi v Gonzales, 442 F.3d 1212 (9^th Cir. 2006); United States v. Lopez-Solis, 447 F.3d 1201 (9^th Cir. 2006).

9.      A new federal offense imposes new requirements for registration as a sex offender, based on state convictions.  Conviction of this federal offense is a new basis for deportation.   In many jurisdictions, state conviction for failure to register is being charged as a crime involving moral turpitude. Adam Walsh Child Protection and Safety Act of 2006, creating new 8 USC §1226(a)(2)(A)(v).

10. Conviction of certain offenses against minors (including false imprisonment and solicitation of sexual conduct) will prevent U.S. citizens and lawful permanent residents from filing family-based immigration petitions to obtain lawful status for their close relatives.  A discretionary waiver is available, but there is no judicial review of a denial.   Adam Walsh Child Protection and Safety Act of 2006, creating new 8 USC §§ 1154(a)(1)(A)(viii) and (B)(i).

11. Stipulation to a police report as a factual basis presents the risk that information in the report will be held part of the record of conviction in a modified categorical analysis.  Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. 2005); United Status v Espinoza-Cano, 456 F.3d 1126 (9^th Cir. 2006); United Status v Hernandez-Hernandez, 431 F.3d 1212 (9^th Cir. 2005); but see United Status v Almazan-Becerra, 456 F.3d 949 (9^th Cir. 2006).

Discussion

1.      During a probationary period, a trial court has authority to reduce the jail time imposed as a condition of probation in order to avoid immigration consequences.  People v. Segura (Second Appellate District, October 26, 2006).[1]

Summary.  Many offenses will be classed as aggravated felonies if and only if a sentence of a year or more has been imposed.  See Note: Aggravated Felonies.  Custody imposed as a condition of probation is a “sentence” for this purpose.  A California appellate court reaffirmed that under P.C. §1203.3, during probation a court can modify the terms of probation for any reason, including reducing custody imposed as a condition of probation to less than 365 days due to immigration concerns.  As discussed below, the court can modify a sentence under Calif. P.C. §1203.3 to meet other immigration defense goals as well.

Discussion.  While he was still on probation, a defendant who had been convicted of a crime of violence with a 365 day sentence imposed as a condition of probation (which is an aggravated felony) requested a nunc pro tunc order or a writ of error coram nobis reducing the term imposed to 360 days.  The trial court denied the request based on its belief that it lacked authority to grant it because the jail term had been part of a plea agreement. The appellate court stated that it is within the scope of a trial court’s discretion to modify the terms and conditions of defendant's probation over the prosecutor's objection. It is an implicit possibility in any plea bargain that includes conditions of probation that the order of probation subsequently may be modified, revoked, or terminated pursuant to Calif. P.C. § 1203.3. The trial court had discretion under § 1203.3 and its inherent authority to alter the length of the jail term as a function of its ability to modify the terms of defendant's probation.  The appellate court remanded the case so that the trial court could consider the request to modify the sentence to less than 365 days.

This decision reaffirms the right of a trial court to modify a custody term imposed as a condition of probation, for any reason including immigration concerns.  Immigration authorities will accept such a modified sentence regardless of the basis.[2]   (In contrast, with the exception of a first minor drug conviction, a withdrawal of plea will not be accepted by immigration authorities unless it is based on legal error.[3])

Other immigration goals can be met by modification of sentence.  If a judge imposes a sentence of a year or more and suspends execution, that will be a sentence of a year or more for immigration purposes.  Under the language of P.C. §1203.3, a court can modify a sentence by changing a suspended state prison sentence to imposition of sentence suspended.   Also, a person is inadmissible for one conviction of a crime involving moral turpitude unless she comes within the “petty offense” exception, which requires that the offense has a potential sentence of not more than a year and an actual sentence of not more than six months.   Counsel can request modification of the probation custody to 180 days, and if necessary apply to reduce a wobbler to a misdemeanor under P.C. §17.

People v Segura presented a different situation from People v Borja,[4] a Fourth Appellate District decision that prosecutors have cited generally for the proposition that a trial court ought not to modify a sentence based on immigration concerns.  In Borja the defendant pled guilty in 1994 and was sentenced to 365 days of custody as a condition of probation.  In 2002 he requested that the court modify the term of imprisonment to 364 days, based on the fact that in 1996 the offense retroactively had been classed as an aggravated felony for immigration purposes. The trial court granted, but the appellate court reversed..  It stated that a subsequent change in federal immigration law was not an adequate basis for modifying a term of imprisonment, given that Borja had raised no complaints about what he was told at the time he pleaded guilty.  The court also objected in general to granting a motion to change the impact of a conviction years after the time had been served and probation had ended.  

Despite this, in many cases practitioners have been successful in obtaining modification of sentences past the close of probation, in particular when the prosecution has agreed to the result and does not appeal. 

2.      Accessory after the fact and misprision of felony are held crimes involving moral turpitude.  Navarro-Lopez v Gonzales, 455 F.3d 1055 (9^th Cir. 2006), Matter of Robles, 24 I&N Dec. 22 (BIA 2006).[5]

Summary.  Accessory after the fact (and similar offenses such as federal misprision or Arizona hindering prosecution) is a valuable plea option, especially to avoid offenses that would be characterized as controlled substance, sexual abuse of a minor, firearms, or crime of domestic violence.  Now, however, the Ninth Circuit has held that the offense is a crime involving moral turpitude, so counsel must use more caution in calculating its effect.

Discussion.  The Ninth Circuit held that Calif. P.C. §32, accessory after the fact, is a crime involving moral turpitude. Navarro-Lopez v Gonzales, supra.   The Board of Immigration Appeals held that federal misprision of felony under 18 USC §4 is a crime involving moral turpitude.  Matter of Robles, supra.  It is likely that immigration authorities will extend these holdings to Arizona offenses such as hindering prosecution or tampering with evidence, under ARS §§ 13-1510-12 and 13-2809.   All of the above pleas have been recommended as “safer” pleas for immigrants, especially as an alternative to a drug conviction.

Despite this disadvantage, the accessory type of offense still is a very useful plea, especially to avoid conviction of a drug offense.  Here is a summary of the advantages and disadvantages to a plea to accessory, misprision, tampering, etc.

Advantages:  The plea will not take on the character of the underlying offense.  Therefore a plea to accessory after the fact to a drug transaction is not a “conviction relating to a controlled substance” that causes deportability and inadmissibility as a drug conviction – one of the most difficult grounds to overcome.  It will not cause deportability as aggravated felony (absent a sentence imposed of a year or more), firearms conviction, or domestic violence conviction, regardless of the nature of the principal offense.

Disadvantages:

·        Assume that accessory-type offenses will be held crimes involving moral turpitude, even if the principal offense did not involve moral turpitude.

·        Accessory after the fact (but not misprision of felony) is an aggravated felony as obstruction of justice if a sentence of a year or more is imposed.

·        Accessory to a drug deal is not a drug conviction.  However, it may provide the government with “reason to believe” that the person assisted a drug trafficker, which is a very serious ground of inadmissibility that can permanently bar someone from ever obtaining lawful status.

Example:  Harry is a permanent resident.  He is offered a plea to accessory after the fact to a drug trafficking conviction, under Calif. P.C. §32, with a one-year sentence imposed.

Harry must bargain for 364 days, or the P.C. §32 will become an aggravated felony.  The plea is very advantageous in that it will avoid a drug conviction, which frequently has far worse immigration consequences than a moral turpitude conviction.  This may, however, give the government “reason to believe” that Harry assisted a drug trafficker, which will make Harry inadmissible. Since he is a permanent resident, the main disadvantage that this causes is that he must not travel outside the United States, and he should wait five years before applying for naturalization to U.S. citizenship (and, as always, make sure he is not deportable under some ground before he applies.)  If Harry were undocumented, however, such a plea might bar him from ever getting lawful immigration status by making him permanently inadmissible with little hope of a waiver.[6]

Finally, this offense is a crime involving moral turpitude.   Depending on Harry’s individual situation (e.g. his prior criminal history, when he got his green card, how long after that he committed the offense, etc.), this might or might not make him deportable, and might or might not make him ineligible for discretionary relief from deportation.  He needs an individual analysis, if necessary done with an immigration consultant such as the ILRC in California or the Florence Project in Arizona.   If he cannot afford to accept a moral turpitude conviction, perhaps he can plead to another alternative to a drug offense.  See “Note: Safer Pleas.”

3.      Reckless infliction of injury is not a crime of violence; Ceron-Sanchez, Park overruled.  Fernandez-Ruiz v Gonzales, __ F.3d __ (9^th Cir. October 26, 2006)(en banc).

Summary. In a welcome although not unexpected decision, the Ninth Circuit en banc held that under Supreme Court precedent, an offense involving reckless infliction of injury is not a “crime of violence” under 18 USC §16.   Specifically, ARS §§ 13-1203(a)(3) and 13-3601, which can be violated by reckless infliction of injury, were held not to be categorically a crime of violence or a deportable domestic violence offense.[7]  Prior decisions to the contrary were held overruled.

Discussion.  In 2004 the Supreme Court in Leocal v Ashcroft held that a crime that involved the negligent infliction of injury (drunk driving) is not a crime of violence under 18 USC §16.   Therefore such an offense would not be an aggravated felony as a crime of violence even if a one-year sentence were imposed,[8] or a deportable domestic violence offense even if the victim had the requisite domestic relationship.[9]    The Supreme Court did not explicitly rule on whether reckless causation of injury was a crime of violence, although the reasoning of the case strongly supported such a finding.  The Ninth Circuit had precedent going in both directions.  Fernandez-Ruiz now resolves the question by holding that the offense not a crime of violence.

There had been confusion. After Leocal, the Ninth Circuit in Lara-Cazares v Gonzales ruled that a vehicular manslaughter caused by “criminal negligence,” which had been held equivalent to recklessness, is not a crime of violence.[10]   Earlier Ninth Circuit cases such as U.S. v Ceron-Sanchez and Park v INS, which had  held that reckless infliction of injury constitutes a crime of violence,[11] appeared to be overturned under Leocal and per Lara-Cazares.  At the same time, the first decision in Fernandez-Ruiz v Gonzales, 410 F.3d 585 (9th 2005), in which the panel missed the issue entirely when, without mentioning Leocal, it relied upon Ceron-Sanchez to hold that reckless infliction of injury under A.R.S. §13-1203 is a crime of violence.  The new en banc Fernandez-Ruiz opinion resolves the matter by holding reckless infliction of injury not to be a crime of violence, and reversing the prior conflicting precedent.

4.      An offense that can be violated by mere offensive touching is not categorically a “crime of violence” and therefore not categorically a “crime of domestic violence.”  Neither is it a crime involving moral turpitude.  Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9^th Cir. 2006); Singh v. Ashcroft, 386 F.3d 1228 (9^th Cir. 2004); Matter of Sanudo, 23 I. & N. Dec. 968 (BIA 2006).

Summary.  Recent cases affirm that a plea to an offense that can be violated by mere offensive touching is not a “crime of violence,” and hence will not be a crime of domestic violence[12] or an aggravated felony as a crime of violence.[13]  Even Calif. P.C. §243(e) will not be a deportable crime of domestic violence, as long as the record does not show that actual violence was involved.  Neither is such an offense a crime involving moral turpitude, even if committed against a spouse or family member. 

Discussion.  Several cases have held that where a misdemeanor offense can be committed by “mere offensive touching” as opposed to actual violence, the offense is not categorically a “crime of violence” under 18 USC §16. 

·        Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9^th Cir. 2006) (misdemeanor battery in violation of Calif. P.C. § 242)

·        Matter of Sanudo, 23 I. & N. Dec. 968 (BIA 2006) (misdemeanor battery and spousal battery under Calif. P.C. §§ 242, 243(e))

·        Singh v. Ashcroft, 386 F.3d 1228 (9^th Cir. 2004) (harassment under Or. Rev. Stat. §166.065(1)(a)(A)

Arizona assault under ARS §13-1203(a)(3) also would come within this category as it can be violated by a touch intended to cause insult. 

In addition, such offenses are not crimes involving moral turpitude, even if the victim is a family member.  Sanudo, supra.   In contrast, offenses that require actual force against a relative – for example, willful infliction of traumatic injury on a family member under Calif. P.C. §273.5 – are both crimes of violence and crimes involving moral turpitude.

The Board of Immigration Appeals held that the “offensive touching” statutes can be found to be crimes of violence under a modified categorical analysis, if the record of conviction establishes that force amounting to violence was used.[14]   Sanudo, supra.

Where an offense is a felony, it is less clear that it will escape classification as a crime of violence.  Under 18 USC §16(b) a felony offense is a crime of violence if "by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."  For example, in Lisbey v Gonzales, 420 F.3d 930 (9^th Cir. 2006) the court found that felony sexual battery under Calif. P.C. 243.4(a) is a crime of violence under §16(b).  The court relied on the fact that the battery required the victim to be touched against his or her will while being unlawfully restrained, a situation that could lead to violence.  In contrast, in United States v Hernandez-Hernandez the Ninth Circuit held that t is not clear whether a felony battery without such conditions would be held to be a crime of violence.

5.      The government cannot prove a domestic relationship in a California offense by using information from dropped charges, or from a requirement of domestic violence counseling or a stay-away order naming the victim.   Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9^th Cir. 2006). 

Summary.   Conviction of a “crime of violence” is a deportable domestic violence offense only if the record of conviction establishes that the victim had the required “domestic” relationship.[15] 

Defense counsel in California will avoid deportability under the domestic violence ground by pleading to “generic” crime of violence, i.e. an offense that does not have domestic relationship as an element, with no victim named, even if:

·        Dropped charges name a victim and allege that the victim had a domestic relationship;

·        As part of the judgment, the defendant receives a stay-away order relating to a person of the same name;

·        As part of the judgment, the defendant is ordered to attend domestic violence counseling; and

·        The defendant in immigration proceedings subsequently states that the person named in the stay-away order is his wife.

In this case the Court applied rules governing a modified categorical analysis by plea that the Supreme Court set out in Shepard v United States.[16]  The Ninth Circuit did not address the issue of how much of the above would apply if the charge pled to contained a victim’s name, but no recitation of a domestic relationship.  Non-California convictions that contain domestic violence designations, e.g. A.R.S. §13-1306, would not necessarily have this same result.  A different rule may apply in federal criminal proceedings.[17]

Discussion. The Cisneros-Perez decision concerned a conviction of simple battery under Calif. P.C. § 242.  Because the noncitizen had (wrongly) conceded that simple battery is categorically a crime of violence, the court focused not on that question but on whether the reviewable record adequately established that the victim of the offense had the domestic relationship necessary for the offense to be a deportable “crime of domestic violence.”   The court found that it did not.

The initial complaint charged violations of two domestic violence statutes, Calif. P.C. §§ 273.5 and 243(e)(1), stated that the victim of the crime was Cisneros-Perez’s wife, and recited language stating that she had a qualified domestic relationship to the defendant under the laws of California.  These charges were dismissed, and Cisneros-Perez pled no contest to simple battery under P.C. §242, where no victim was named.  He was sentenced to 52 weeks of domestic violence counseling and ordered to stay away from the person who had been named in the original charges.

The Court held that under the categorical approach the petitioner’s conviction for Calif. P.C. §242 in and of itself did not prove the domestic relationship, as there is no element of a domestic relationship to the offense. The court then moved on to the modified categorical approach.  The Court found that the record of conviction, consisting of the complaint and judgment, was insufficient to establish that the victim of the battery had the domestic relationship. 

Dropped Charges’ Relation to Offense of Conviction.  The court properly refused to use information that had been included in dropped charges, which had identified the victim as his ex-wife.  Looking at the record of the conviction under P.C. §242, the Court stated that the “record established neither the name of the victim of the simple battery nor the relationship of that person to Cisneros-Perez.  It is not stated in any of the cognizable documents that the conviction for violating section 242 stems from the same incident as the charges in the criminal complaint.”[18]    

The Court acknowledged that an inference could be made that the battery offense to which the petitioner plead involved the victim in the dropped charges, especially since he was given a sentence of domestic violence counseling and ordered to stay away from her.  Nonetheless, the Court, citing Shepard, held that inferences are insufficient under the modified categorical approach.  The Court said:

Where, as here, there are statutes directly addressing domestic violence, such as California Penal Code sections 243(e)(1) and 273.5, only the most convincing proof of the nature of a conviction for a more general crime will suffice to establish a crime of domestic violence.  We therefore may not rely on the complaint for the conclusion that the crime of which Cisneros-Perez was convicted was battery of a person with the requisite domestic relationship to Cisneros-Perez.[19]

Admission of Relationship in Immigration Proceedings.  The Court also rejected an argument that Mr. Cisneros-Perez’ admission in immigration proceedings that the person listed in the stay away order in the judgment was his wife could not supply the missing domestic relationship element in a modified categorical analysis.  In fact, it is well-established that statements in immigration proceedings regarding a prior offense cannot be considered in a modified categorical analysis, either to hurt or help the immigrant.[20]

Domestic Violence Counseling, Stay-Away Order.  The Court held that a domestic violence sentence in California in the form of domestic violence counseling and a stay away order from the person named in the dropped charge also did not conclusively establish that the offense of conviction involved domestic violence. The Court noted that “Although California mandates domestic violence counseling for those convicted of domestic battery who are sentenced to probation, it does not forbid domestic violence counseling for those convicted of other crimes…. California law, like federal law, lodges broad discretion in sentencing judges with regard to probation conditions and does not require that the conditions be directly connected to the crime of conviction.”[21] 

Practice Tips. Considering Ortega-Mendez and Cisneros-Perez together, simple battery under Calif. P.C. § 242 or ARS §13-1203(a)(3) is a safe plea if defense counsel takes either of two possible precautions. 

• Avoid characterization of the offense as a crime of violence, by leaving the record of conviction sufficiently vague to leave open the possibility that the offense only involve mere offensive touching and/or reckless infliction of injury.  If this is done, even identification of a domestic relationship under P.C. §243(a) or ARS §13-3601 will not make the offense a deportable crime of domestic violence. 

·        If counsel cannot avoid conviction of an offense that will be characterized as a crime of violence, counsel still can avoid the deportation ground by avoiding creation of a record establishing that the victim had a qualified domestic relationship to the defendant, using guidelines in Cisneros-Perez and Tokatly v. Ashcroft, 371 F.3d 613, 623 (9th Cir. 2004).

Under either of these strategies, defense counsel should be careful not to have their client stipulate to other documents outside of the record of conviction, e.g. the police report, on the record.  If the client does so, this might serve as a basis for the immigration court to look at the underlying facts of the offense that would tend to show that the crime was a violent one and that the victim had a qualified domestic relationship to the victim.  See discussion of Parilla v Gonzales at Part 9, infra. 

6.      The Supreme Court will decide whether felony simple possession of a controlled substance is an aggravated felony, in immigration or federal criminal proceedings.  Lopez v. Gonzales (No. 05-547); Toledo-Flores Vds. (No. 05-7664).[22]

Summary:  It is possible that the Supreme Court will overturn the beneficial Ninth Circuit rule that in immigration proceedings a felony simple possession is not an aggravted felony.  Counsel should warn clients facing felony simple possession charges, who should look for alternate pleas or might decide to defer pleading until the court rules.  Immigrant advocates are cautiously optimistic, but this decision could go either way.

Discussion.  The Supreme Court recently heard oral argument in Lopez v.Gonzales (No. 05-547) (immigration case) and its companion case Toledo-Flores v.U.S. (No. 05-7664) (federal criminal sentencing case). These cases challenge the government’s assertion that a state felony conviction for simple possession is a “drug trafficking” aggravated felony.  Currently the Ninth Circuit has a beneficial rule, holding that in immigration proceedings a state felony possession is not an aggravated felony.  This decision could reverse this rule.

These cases are significant for noncitizen defendants accused of state drug offenses. While conviction of virtually any drug offense makes your noncitizen client subject to possible removal from the United States, conviction of a drug-related “aggravated felony” almost certainly subjects your client to mandatory deportation. That is, your client—even if s/he has a green card—will be ordered removed without any consideration of favorable factors, such as legal residence of long duration, extensive family ties, evidence of rehabilitation, etc. Thus, depending on how the Supreme Court rules in Lopez and Toledo-Flores, your client who pleads guilty today to a first-time state felony drug possession offense may or may not become subject to mandatory deportation, and you should advise your client accordingly about the current uncertainty in the law. If it is important to your client to avoid mandatory deportation, s/he may wish to postpone plea until the Court decides. If this is not possible, s/he may wish to include a statement in the plea allocution that s/he is pleading based on current case law. This would leave open the possibility of a later motion to withdraw the plea should the Supreme Court’s decision overrule the current case law on which the plea was based. 

Where possible, defendants should plead to being under the influence of a drug.  Under Arizona law, where possession and under the influence are contained in the same statute, it may be quite possible to plead either directly to being under the influence, or to leave the record vague between the two.  

There is no indication that the court will address the validity of the ruling in Lujan-Armendariz v Ashcroft, which  provides that state “rehabilitative relief” such as expungement following completion of probation will eliminate the immigration effects of a first conviction for simple possession or a lesser offense.  However, it is not completely impossible, and this may be another reason for a defendant to defer pleading until the court rules.

For more information about the current law governing drug pleas, see “Note: Controlled Substance Convictions” in the California or Arizona on-line materials at www.ilrc.org/criminal.php.   For more information about the Supreme Court cases, go to http://www.nysda.org/idp/webPages/LvGPressroom.htm.[23] 

7.      The Supreme Court will decide whether a temporary taking is “theft” for aggravated felony purposes, and whether aiding and abetting an aggravated felony is itself an aggravated felony.  Gonzales v. Duenas-Alvarez, 05-1629.[24]

Summary.   This pending case does not require a change of practice from what already is recommended.  It may cost immigration counsel a valuable defense based on the potential a record has to be read as “aiding and abetting,” but we have not advised criminal defense attorneys to rely on this defense or create a particular record.

Discussion.  The current definition of the aggravated felony “theft” includes a temporary taking of property.   In addition, the Ninth Circuit has held that aiding and abetting a theft offense (and potentially any offense) under California law is not itself an aggravated felony.  See, e.g., Penuliar v Ashcroft, 395 F.3d 1037 (9^th Cir. 2005).

In December 2006 the Supreme Court will hear arguments that the definition of theft for aggravated felony purposes ought to include only a permanent taking, as well as arguments against the validity of the aiding and abetting defense.[25]  The fact that the Supreme Court case is pending does not change the advice provided in materials for criminal defense counsel.  Counsel should assume conservatively that a temporary taking will continue to be considered “theft” as an aggravated felony.  We will post information about a decision as soon as it occurs.   Immigration practitioners should note that if the aiding and abetting defense is lost, this will be apply to past convictions.

8.      Conviction of consensual sex with a person under the age of 18 is the aggravated felony “sexual abuse of a minor” in immigration proceedings occurring within the Ninth Circuit, although not necessarily in federal criminal proceedings.  Afridi v Gonzales, 442 F.3d 1212 (9^th Cir. 2006); United States v. Lopez-Solis, 447 F.3d 1201 (9^th Cir. 2006.[26]

Summary.  Continue to treat statutory rape convictions, including consensual sexual intercourse with any person under the age of 18, as aggravated felonies.  For alternate pleas, see Note: Sex Offenses and Note: Safer Pleas.

Discussion.  In our materials we advised criminal defense counsel to avoid at all costs conviction of consensual sex with a minor, since it was likely to be held to be an aggravated felony as sexual abuse of a minor.  We stated, however, that there still might be hope that the Ninth Circuit would make an exception for older victims, for example where the act was between a 17- and 18-year old couple, so that some advantage might be gained by leaving the record of conviction vague as to the age of the victim. 

Now the court has held that for immigration purposes, even this is a conviction of sexual abuse of a minor.[27]   The court held that this is not an aggravated felony as a “crime of violence” under 18 USC §16,[28] but this provides no benefit since the noncitizen will be held an aggravated felon under the sexual abuse of a minor category regardless.  In an illogical split, the Ninth Circuit has held that consensual sex with a 17-year-old is not “sexual abuse of a minor” for purposes of federal prosecutions for illegal reentry following certain convictions.[29]   Because of this and other conflicts it is possible that the court will address this issue en banc at some point, but unless and until that happens criminal defense counsel must assume that any misdemeanor conviction of consensual sexual intercourse with a minor will be held an aggravated felony, and do everything possible to avoid it.

9.      A new federal offense imposes requirements for registration as a sex offender, based on state convictions.  Conviction of this federal offense is a new basis for deportation.   Adam Walsh Child Protection and Safety Act of 2006, creating new 8 USC §1226(a)(2)(A)(v).  Immigration authorities are charging failure to register under Calif. P.C. §290 as a crime involving moral turpitude.

A.  New Federal Offense for Failure to Register as a Sex Offender Based on State Conviction; New Ground of Deportability Based on Conviction of the Federal Offense[30]

Effective July 27, 2006, Congress created 18 USC § 2250, a new federal offense for failure to register as a sex offender based on, among other things, a state conviction.  It also created a new deportation ground based on conviction for failure to register under §2250.[31]   While a federal conviction of violating § 2250 triggers deportation and disqualification from eligibility for cancellation of removal for non-lawful permanent residents, it does not appear to trigger any other major adverse immigration consequences. 

Section 2250 is a federal offense that penalizes failure to register as a sex offender in any jurisdiction, including a state.  It requires persons who travel in interstate commerce or otherwise meet jurisdictional requirements, and who have been convicted in any jurisdiction of any of a large number of sex offenses (or, it appears, offenses such as false imprisonment) involving minors, to register in the jurisdictions of their conviction, incarceration, residence, or school within three business days after sentence or prior to release from custody, and within three days of changing address.  The details of who is required to register and for what offenses are provided in Title I of the Adam Walsh Act, Act July 27, 2006, P.L. 109-248.[32]  Criminal defenders should obtain analysis of these laws and advise citizen and noncitizen clients of the requirement, and especially advise noncitizen clients that a conviction will be a ground for deportability.

Elements of Deportation Ground.  The elements of this new ground of deportation are as follows:

(1)   criminal conviction

(2)   after admission[33]

(3)   under 18 U.S.C. § 2250

(4)   on or after July 27, 2006.

This deportation ground is triggered only upon a federal criminal conviction of violating 18 U.S.C. § 2250, since a state conviction of failure to register as a sex offender is not a “conviction under” 18 U.S.C. § 2250. 

B.  The DHS is charging failure to register as a sex offender under Calif. P.C. §290 as a crime involving moral turpitude.

Immigration authorities are charging that conviction under Calif. P.C. § 290 is a crime involving moral turpitude.  This charge appears to be incorrect, as this clearly is the type of regulatory offense that has not been held to involve moral turpitude in the past.  However, because of the heightened feelings about sex offenses, it is possible that immigration judges will uphold this charge.  Counsel should attempt to plead to an alternative.

10. Conviction of certain offenses against minors (including false imprisonment and solicitation of sexual conduct) will prevent U.S. citizens and lawful permanent residents from filing family based immigration petitions to obtain lawful status for their close relatives.  A discretionary waiver is available, but there is no judicial review of a denial.   Adam Walsh Child Protection and Safety Act of 2006, creating new 8 USC §§ 1154(a)(1)(A)(viii) and (B)(i).

Effective July 27, 2006, both U.S. citizens and lawful permanent residents convicted of a “specified offense against a minor[34]” cannot file a family-based immigrant petition to obtain lawful immigration status for close family members.  There is a narrow exception, if the Secretary of Homeland Security decides in his “sole and unreviewable” discretion that the citizen or permanent resident petitioner poses no risk to the relative. 

Criminal defense counsel should warn citizen and non-citizen clients that accepting such a plea may prevent their ability to help noncitizen family members.

Specified offenses against a minor.  Conviction of the following offenses will bar a U.S. citizen or permanent relative from petitioning for a family member:[35]

• (A) an offense involving kidnapping, unless committed by a parent or guardian;
• (B) an offense involving false imprisonment, unless committed by a parent or guardian;
• (C) solicitation to engage in sexual conduct;
• (D) use in sexual performance;
• (E) solicitation to practice prostitution;
• (F) video voyeurism as described in 18 USC § 1801;
• (G) possession, production, or distribution of child pornography;
• (H) criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt this conduct;
• (I) any conduct that by its nature is a sex offense against a minor.[36]

DHS has indicated that an IBIS check will be run on every petitioner who files a family-based immigration petition.  If there is a hit for “any sexual or kidnapping offense that is, or potentially may be a specified offense against a minor” then the adjudicators can take two more steps.  They will issue a request for evidence to obtain all police arrest records and court disposition documents.  After that, the petitioner will be scheduled for fingerprinting at the cost of the government.  Although the adjudicators can take the above steps, the final adjudication of the cases is suspended until further guidance is received on the implementation of this law.  However, CIS may deny the petitions on other grounds. [37]  

11. Stipulation to a police report as a factual basis presents the risk that information in the report will be held part of the record of conviction in a modified categorical analysis.  Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. 2005); United Status v Espinoza-Cano, 456 F.3d 1126 (9^th Cir. 2006); United Status v Hernandez-Hernandez, 431 F.3d 1212 (9^th Cir. 2005); United Status v Almazan-Becerra, 456 F.3d 949 (9^th Cir. 2006).

In Parrilla v. Gonzales, supra, the Ninth Circuit held that although police reports and complaint applications standing alone may not be considered in a modified categorical analysis, the contents of the documents may be considered if specifically incorporated into the guilty plea or admitted by the defendant.   See Practice Advisory at http://www.ilrc.org/Parilla_summary.pdf.  

While more recent cases [38] present arguments that stipulations incorporate information into the record only in limited circumstances, counsel should wherever possible avoid stipulating to a police report in order to create a factual record.   The ILRC will publish an additional Practice Advisory on creating a safer factual record in the near future.