Immigration-aware criminal defense strategies
Immigration law is U.S. federal law whereas most crimes are charged under state law.
One of the most important defense strategies comes from understanding how federal law will analyze a state conviction for immigration purposes. This is referred to as the categorical approach, and it applies to almost all removal grounds. The following is a summary.
For most removal grounds, a conviction triggers the ground only if the minimum conduct ever prosecuted under the statute (a/k/a the “least act criminalized” by the statute) would do so, without regard to what the individual defendant did or pled guilty to. This is a defendant-friendly rule meant to ensure fairness and judicial efficiency in immigration proceedings.
However, rather than rely on this rule and not create a good individual record, the best practice for a noncitizen defendant is to plead to the specific “safe” minimum conduct rather than, e.g., to the facts in the charge or the statutory language, where that is possible. This is because immigration authorities might misapply the law, and wrongly look to the person’s own conviction record to evaluate the offense.
Example: The minimum conduct required to be guilty of Penal Code § 243(e) is an offensive touching against the victim. That is not a crime of violence, a crime of domestic violence, or a crime involving moral turpitude for immigration purposes. Therefore, no conviction of § 243(e) has these consequences, for purposes of deportability, inadmissibility, or eligibility for relief. This is true even if the defendant pled guilty to more violent conduct. Still, because of the risk that an immigration judge might not apply the minimum conduct rule correctly, best practice is to plead to an offensive touching when that is possible.
There is an important variation on the minimum conduct rule. Some criminal statutes are “divisible” in that they set out distinct multiple offenses, at least one of which triggers a removal ground. If a statute is divisible, an immigration judge is permitted to review certain documents from the individual’s record of conviction, to see of which offense the person was convicted. Then the judge will apply the minimum conduct rule to that offense.
When is a statute divisible? In the Ninth Circuit, it is divisible only if (1) it is phrased in the alternative (using “or”); (2) at least one, but not all, of the alternatives triggers the removal ground; and (3) a jury always must decide unanimously between the alternatives in order to find guilt (this is the definition of an element). For many statutes, the jury unanimity requirement is the key to determining divisibility.
Example: California Vehicle Code § 10851 prohibits taking a vehicle with intent to deprive the owner “permanently or temporarily.” Intent to deprive permanently is a crime involving moral turpitude (CIMT), but temporary intent is not. Is § 10851 divisible as a CIMT?
The Ninth Circuit found that it is not. Section 10851 meets the first two requirements for a divisible statute: it sets out statutory alternatives, at least one but not all of which would trigger the removal ground. But it fails the third requirement, because a jury is not required to decide unanimously between temporary and permanent intent in order to find guilt under § 10851.
Because the statute is not divisible, the minimum conduct test applies. The minimum conduct includes a temporary taking (which is not a CIMT), no conviction of § 10851 ever is a CIMT for any immigration purpose. This is true even if the person pled guilty to, or was convicted by jury of, a permanent taking.
Despite this good rule, the best practice is to make a specific plea to the “good” conduct, e.g. to a temporary taking under § 10851, where that is possible. This is because there is a split among Circuit Courts of Appeals as to whether the jury unanimity rule is required. The Supreme Court may address this issue and conceivably could rule against it. Or, the defendant could end up in removal proceedings in another Circuit that does not apply that rule. A specific plea will protect against these contingencies.
All courts agree that a single word, or a phrase that does not contain “or,” is not divisible even if it covers a wide range of conduct. For example, the Supreme Court held that the word “entry” in Penal Code § 459 is not divisible between lawful and unlawful entry, so that all § 459 convictions must be considered to involve a lawful entry. But if a term has its own statutory definition that does list alternatives separated by “or,” it might be divisible. For example, the Ninth Circuit held that the term “controlled substance” in H&S C § 11377 is divisible, because it is defined by a list of substances in state drug schedules.
Record of conviction; Inconclusive record
If a statute is truly divisible, an immigration judge may review a limited set of documents, called the reviewable record of conviction (ROC), to try to discern of which offense the person was convicted. These are the documents defenders will use to create a “good” record. In a conviction by plea, assume that the ROC includes the charge pled to, as amended (not dropped charges); the plea colloquy transcript and, if any, plea agreement; the judgment; and any factual basis for the plea agreed to by the defendant. Watch out for written notations on forms, and information on the Abstract of Judgment that refers to a count, because sometimes these are used.
The ROC does not include the police report, pre-sentence report, or preliminary hearing transcript – unless the defendant stipulates that the document contains a factual basis. To avoid stipulating to any factual basis, see People v. Palmer (2013) 58 Cal.4th 110. If you must stipulate, choose documents that you have identified or created that do not include damaging information, for example a written plea agreement or sanitized complaint.
What if the ROC is inconclusive, for example all of the above documents show only that the § 10851 conviction was for intent to deprive “temporarily or permanently”? Sometimes an inconclusive record can save the day. The benefit of this depends on the immigration context.
- If the issue is whether a permanent resident is deportable, then an inconclusive record is enough. ICE has the burden of proving deportability, and they can’t do it. (Still, best practice is a specific plea to the “good” offense where possible.)
- If instead the person needs to be eligible to apply for lawful status or relief from removal, then under current law an inconclusive record is not enough, because the immigrant must produce a record showing a plea to the “good” alternative. Thus for undocumented persons, permanent residents who already are deportable for a prior conviction, and many others, a specific plea is required.