By Rodin Rooyani and Curtis A. Kin
Please visit the MCLE section of the Daily Journal's website to take this test.
The U.S. Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that plea negotiations are a critical phase of litigation for purposes of the Sixth Amendment and that defense counsel must inform a defendant whether a guilty plea carries a risk of deportation. Consequently, the court held that defense counsel's failure to do so amounts to ineffective assistance of counsel. The court more recently clarified that the rule in Padilla does not apply retroactively. See Chaidez v. United States, 133 S. Ct. 1103 (2013).
To ensure that plea bargains are not subsequently overturned due to ineffective counsel regarding immigration consequences of a guilty plea, bench officers, defense attorneys and prosecutors must be conversant with basic aspects of immigration law.
The objective of this article and self-study test is to familiarize readers regarding the immigration consequences of state criminal proceedings in California and the 9th U.S. Circuit Court of Appeals. Readers will learn about types of dispositions and common categories of crimes that carry immigration consequences.
Criminal activity may result in various immigration consequences for noncitizens. Criminal conduct may render an individual inadmissible to (8 U.S.C. Section 1182) or deportable from (8 U.S.C. Section 1227) the U.S. (collectively referred to as "removable" grounds). A criminal conviction may also subject a person to mandatory detention pending immigration proceedings (8 U.S.C. Section 1226(c)) and render a person ineligible for naturalization and certain forms of relief from removal.
This article examines the types of dispositions in state criminal proceedings that may carry immigration consequences. This article also focuses on the common criminal grounds of removal for crimes relating to a controlled substance, crimes involving moral turpitude, aggravated felonies, firearms offenses, and crimes relating to domestic violence and child abuse.
State Dispositions That Qualify as a "Conviction" for Immigration Purposes
A noncitizen's removability for having committed a crime depends upon whether the definition of a "conviction" is satisfied under the immigration statute. A "conviction" exists for immigration purposes when there has been a formal judgment of guilt entered by a court. 8 U.S.C. Section 1101(a)(48)(A). A "conviction" also exists if the adjudication of guilt has been withheld, but: (1) there has been a finding of guilt by a judge or jury, a plea of guilty or nolo contendere, or an admission of sufficient facts to support a finding of guilt; and (2) the judge ordered some form of punishment, penalty, or restraint on liberty. Ibid.
Based on these definitions, certain state dispositions may or may not constitute a conviction for immigration purposes. If a guilty plea has been taken and restraint such as probation, a fine, or other terms and conditions have been imposed, a withdrawal of the plea based on completion of probation or other terms does not remove a conviction for immigration purposes, regardless of state law to the contrary. This means that expungements or similar dispositions under state rehabilitative statutes generally do not eliminate a conviction for immigration purposes. See Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. 2002). In California, this includes dismissals under Proposition 36's drug treatment initiative (Cal. Pen. Code Section 1210.1) and due to deferred entry of judgment (Cal. Pen. Code Section 1000), and expungements (Cal. Pen. Code Section 1203.4). The only exception to this rule is a conviction for first-time simple drug possession occurring prior to July 14, 2011, which has been set aside or expunged under a state rehabilitative statute which would also satisfy the requirements of the Federal First Offender Act. See LujanArmendariz v. INS, 222 F.3d 728 (9th Cir. 2000); see also Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011).
Vacated convictions may eliminate a conviction for immigration purposes depending on the underlying basis for the vacatur. A conviction that has been vacated solely for equitable, rehabilitative or immigration reasons remains a valid conviction for immigration purposes. Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006). However, a conviction vacated because of procedural or substantive defects in the underlying criminal proceeding is not considered a valid conviction for immigration purposes and cannot serve as a basis for adverse immigration consequences. Ibid. Hence, a conviction cannot be used for immigration purposes if it was vacated due to the state court failing to advise the person of the immigration consequences of his or her plea (see Cal. Pen. Code Section 1016.5), or relief granted for habeas corpus, ineffective assistance of counsel, or some other constitutional defect in the underlying criminal case.
Some examples of state dispositions that may not satisfy the definition of a "conviction," and thus will not have adverse immigration consequences, may include, deferred prosecutions, where a defendant arranges with the prosecutor to continue a case without entering any type of plea, and in the interim completes counseling or makes victim restitution, with the understanding that the case will be dismissed when the person completes his obligations. Pre-guilty plea diversion operates similarly in that the defendant pleads not guilty and the judge continues the case to permit subsequent dismissal of the charge should the defendant complete his or her agreed-upon obligations. A proceeding wherein a plea or finding of facts supporting guilt is not made will also generally avoid immigration consequences.
Common Crimes that Carry Immigration Consequences
Not every "conviction" for a crime will necessarily carry adverse immigration consequences. Only certain categories of criminal offenses lead to such results. The following are common categories crimes that carry adverse immigration consequences.
a. Controlled Substance Offenses
A noncitizen who has been convicted of a violation of (or conspiracy or attempt to violate) any law or regulation relating to a controlled substance (foreign, state or federal) is both inadmissible and deportable from the U.S. 8 U.S.C. SectionÂ 1182(a)(2)(A)(i)(II); 8 U.S.C. Section 1227(a)(2)(B)(i). An exception applies to a single offense of 30 grams or less of marijuana for one's personal use. The controlled substance must be defined under the Controlled Substance Act (21 U.S.C. Section 802). A conviction for a drug paraphernalia offense may also relate to a controlled substance violation, and thus constitute a removable offense.
b. Crimes Involving Moral Turpitude
A noncitizen convicted of a crime involving moral turpitude (CIMT) is deportable, when the potential term of imprisonment is one year or longer, and the offense was committed within five years of the noncitizen's admission to the U.S. 8 U.S.C. SectionÂ 1227(a)(2)(A)(i). A noncitizen may also be inadmissible to the U.S. for a CIMT subject to certain exceptions. 8 U.S.C. SectionÂ 1182(a)(2)(A)(i)(I).
"Moral turpitude" is not defined by the immigration statute, but it refers generally to "base, vile, and depraved conduct that shocks the conscience and is contrary to the societal duties we owe each other." Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007), overruled on other grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011).
Criminal intent is usually required for an offense to qualify as a CIMT. Therefore, while crimes involving fraud are typically CIMTs, nonfraudulent CIMTs almost always involve intent to harm someone. Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. 2010). Strict liability crimes and crimes against the state are generally not considered CIMTs. See Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007).
CIMTs against persons include some assaults (see Ceron v. Holder, 712 F.3d 426, 429 (9th Cir. 2013)), some forms of child abuse (see Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. 2006)), criminal threats (see Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012)), and some sex-related crimes (see Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012)).
CIMTs against property include petty theft (Flores Juarez v. Mukasey, 530 F.3d 1020 (9th Cir. 2008), grand theft (Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994), and robbery (Mendoza v. Holder, 623 F.3d 1299 (9th Cir. 2010)).
c. Aggravated Felonies
A noncitizen who is convicted of an aggravated felony at any time after admission is deportable. 8 U.S.C. Section 1227(a)(2)(A)(iii). An "aggravated felony" is defined under 8 U.S.C. Section 1101(a)(43) and may include certain misdemeanors. Persons with an aggravated felony conviction are generally regarded to be in the worst possible position for immigration purposes, as they are also subject to mandatory bars from receiving most forms of relief from removal.
The following crimes are listed in 8 U.S.C. SectionÂ 1101(a)(43) as aggravated felonies: murder, rape, sexual abuse of a minor; illicit trafficking in a controlled substance; illicit trafficking in firearms or destructive devices; money laundering (involving funds exceeding $10,000); explosive materials and firearms offenses; crimes of violence (involving imprisonment of at least one year); theft or burglary offenses (involving imprisonment of at least one year); crimes relating to ransom demands or receipt; child pornography; racketeering and gambling offenses (involving imprisonment of at least one year); prostitution and human trafficking; crimes relating to national defense information, disclosure of classified information, sabotage, treason and protection of undercover agents; fraud and tax evasion (when the loss exceeds $10,000); alien smuggling; illegal entry or reentry of aggravated felon; forging, counterfeiting or altering passport or similar instrument (involving imprisonment of at least one year); failure to appear for service of sentence (when the crime is punishable by five or more years); bribery, counterfeiting, forgery or trafficking in vehicles with altered identification numbers (involving imprisonment of at least one year); obstruction of justice, perjury or subornation (involving imprisonment of at least one year); failure to appear before a court for a felony; and attempt or conspiracy to commit any of the listed aggravated felonies.
For immigration purposes, any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. 8 U.S.C. SectionÂ 1101(a)(48)(B).
d. Firearms Offenses
Any noncitizen who at any time after admission is convicted of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying (or of attempting or conspiring to do any of the foregoing) any weapon, part or accessory which is a firearm or destructive device (as defined in 18 U.S.C. SectionÂ 921(a)) in violation of any law is deportable. 8 U.S.C. Section 1227(a)(2)(C).
This provision has been read broadly to include the "entire panoply of firearms offenses." See Valerio-Ochoa v. INS, 241 F.3d 1092 (9th Cir. 2001) (holding that a conviction for willfully discharging firearm in grossly negligent manner under Cal. Pen. Code Section 246.3 constitutes a removable firearms offense).
e. Domestic Violence and Child Abuse
A noncitizen who at any time after admission is convicted of a crime of domestic violence, stalking, child abuse, child neglect, child abandonment, or who is found by a court to be in violation of a protective order is deportable. 8 U.S.C. SectionÂ 1227(a)(2)(E).
A "crime of domestic violence" includes "any crime of violence (as defined in 18 U.S.C. Section 16) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government." 8 U.S.C. SectionÂ 1227(a)(2)(E)(i).
Crimes that have been held to involve domestic violence include willful infliction of corporal injury on a spouse under Cal. Pen. Code Section 273.5. Banuelos-Ayon v. Holder, 611 F.3d 1080 (9th Cir. 2010).
The authors are an immigration judge with the Los Angeles Immigration Court, Executive Office for Immigration Review (EOIR), U.S. Department of Justice (DOJ), and an assistant U.S. attorney with DOJ. They prepared this article in their personal capacities, and the views expressed herein are solely those of the authors and do not necessarily represent the positions of EOIR, DOJ or the United States.
Hon. Rodin Rooyani is an immigration judge.
Curtis A. Kin is an assistant U.S. attorney.