Immigration law, a domain of U.S. federal legislation, frequently intersects with state criminal law, creating complex challenges for non-citizens. Navigating this intricate legal landscape requires a nuanced understanding of how federal immigration law interprets state convictions. This is where the categorical approach becomes crucial, particularly for a Criminal Immigration Lawyer Law Firm advising clients. This approach is pivotal in evaluating almost all grounds for deportation, and this article provides a comprehensive overview.
Decoding the Minimum Conduct Rule in Immigration Law
For numerous deportation grounds, a conviction only triggers immigration consequences if the minimum conduct prosecutable under the statute—often termed the “least act criminalized”—meets the criteria. This assessment is made irrespective of the specific actions of the defendant or the details of their guilty plea. This rule is designed to protect defendants, ensuring fairness and efficiency within immigration proceedings.
However, while this rule exists, relying solely on it is not advisable. Best practice dictates that a non-citizen defendant, guided by a skilled criminal immigration lawyer law firm, should aim to plead to the “safe” minimum conduct. This proactive approach is preferable to pleading to the broader facts of the charge or the statutory language itself, where feasible. The rationale is to preempt potential misinterpretations or misapplications of the law by immigration authorities, who might incorrectly scrutinize an individual’s conviction record to assess the offense’s immigration impact.
Example: Consider California Penal Code § 243(e), which pertains to offensive touching. Under immigration law, offensive touching is not classified as a crime of violence, a crime of domestic violence, or a crime involving moral turpitude. Consequently, a conviction under § 243(e) does not automatically lead to deportation, inadmissibility, or ineligibility for immigration relief. This holds true even if the defendant’s actions were more severe. Nonetheless, to mitigate risks associated with potential errors in legal interpretation, a criminal immigration lawyer law firm would typically advise pleading specifically to offensive touching when possible, ensuring the record clearly reflects the least offense conduct.
Navigating Divisible Statutes in Criminal and Immigration Law
An important modification to the minimum conduct rule arises with “divisible” criminal statutes. These statutes encompass distinct, multiple offenses, where at least one could trigger a ground for deportation. When a statute is deemed divisible, immigration judges are authorized to examine specific documents from the individual’s record of conviction to determine the precise offense for which the person was convicted. The minimum conduct rule is then applied to this specific offense.
The criteria for determining if a statute is divisible, particularly within the Ninth Circuit, are threefold: (1) the statute must be phrased in the alternative, using “or”; (2) at least one, but not all, of the alternatives must trigger a deportation ground; and (3) a jury must unanimously agree on one of the alternatives to establish guilt—this defines an element of the crime. The jury unanimity requirement often serves as the linchpin in determining divisibility for many statutes.
Example: California Vehicle Code § 10851, accessible at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH§ionNum=10851, prohibits vehicle theft with the intent to deprive the owner “permanently or temporarily.” Intent to permanently deprive is considered a crime involving moral turpitude (CIMT), whereas temporary intent is not. Is § 10851 divisible concerning CIMT implications?
The Ninth Circuit, in a ruling available at https://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/28/09-71415.pdf, determined that it is not. While § 10851 meets the first two divisibility criteria—presenting alternatives, with only one triggering deportation—it fails the third. Juries are not required to reach unanimous agreement on whether the intent was temporary or permanent to find guilt under § 10851.
Since the statute is not divisible, the minimum conduct rule takes precedence. As the minimum conduct includes temporary taking (which is not a CIMT), no conviction under § 10851 can ever be classified as a CIMT for immigration purposes. This remains true even if an individual pleaded guilty to or was convicted of a permanent taking.
Despite this favorable rule, a criminal immigration lawyer law firm will still advocate for a plea specifically to the “good” conduct, such as temporary taking under § 10851, whenever possible. This precaution is due to differing interpretations among Circuit Courts of Appeals regarding the jury unanimity rule. The Supreme Court might address and potentially overturn this rule. Furthermore, a defendant’s removal proceedings might occur in a circuit that does not adhere to this rule. A specific plea provides crucial protection against such uncertainties.
Courts universally agree that a single word or phrase without “or” is not divisible, regardless of its broad scope. For instance, the Supreme Court clarified that “entry” in Penal Code § 459 is not divisible between lawful and unlawful entry. Thus, all § 459 convictions are treated as involving lawful entry. However, a term defined by alternatives separated by “or” in its statutory definition might be divisible. For example, the Ninth Circuit has recognized “controlled substance” in H&S C § 11377 as divisible because its definition includes a list of substances in state drug schedules.
The Record of Conviction and Its Implications
When dealing with a genuinely divisible statute, an immigration judge is permitted to review a specific set of documents, known as the reviewable record of conviction (ROC), to ascertain the exact offense of conviction. These documents are instrumental for defense lawyers aiming to establish a favorable record. In plea-based convictions, the ROC typically includes the charge as pleaded to (including amendments, excluding dropped charges), the plea colloquy transcript, any plea agreement, the judgment, and any factual basis for the plea agreed upon by the defendant. It is important to be vigilant about written notations on forms and details in the Abstract of Judgment that might reference a specific count, as these can be considered.
Crucially, the ROC excludes police reports, pre-sentence reports, and preliminary hearing transcripts—unless the defendant explicitly stipulates that such a document provides a factual basis for the plea. To avoid unintended stipulations, guidance can be found in People v. Palmer (2013) 58 Cal.4th 110. If stipulation is unavoidable, a criminal immigration lawyer law firm should carefully select documents that are devoid of damaging information, such as a meticulously crafted plea agreement or a sanitized complaint.
What happens if the ROC remains inconclusive, for example, if all documents only indicate a § 10851 conviction for intent to deprive “temporarily or permanently”? An inconclusive record can sometimes be advantageous, depending on the immigration context.
- In deportation cases of permanent residents, an inconclusive record can be sufficient. The burden of proof lies with ICE to demonstrate deportability, which they cannot do with an inconclusive record. (Nevertheless, securing a specific plea to the “good” offense remains the best strategy where feasible).
- Conversely, for individuals seeking eligibility for lawful status or relief from removal, current law dictates that an inconclusive record is insufficient. These individuals must present a record explicitly showing a plea to the “good” alternative. Consequently, for undocumented individuals, permanent residents already deportable due to prior convictions, and many others, obtaining a specific plea, guided by a criminal immigration lawyer law firm, is essential.
In conclusion, understanding the nuances of immigration law in the context of criminal defense is paramount for non-citizens. Engaging a criminal immigration lawyer law firm ensures that defendants receive informed counsel, strategic defense planning, and the best possible outcomes in complex cases at the intersection of criminal and immigration law.
