What Qualifies as a Conviction for Immigration Purposes?
Immigration law has its own definition of what constitutes a criminal "conviction." Because most, although not all, immigration consequences require a conviction, if your client does not have a conviction the immigration case might be saved. This Advisory discusses which dispositions that come out of criminal court actually constitute a conviction for immigration purposes, and how to avoid a conviction. It has been updated to include the BIA's decision that a conviction on direct appeal of right does not have sufficient finality to be a conviction for immigration purposes.
Sanctuary for All: Effective Criminal/Immigration Policy Fixes
Over the past four years, working with partner organizations throughout California and nationally, the ILRC has helped advocate and pass a series of reforms at the local and state levels that advance the rights of both citizens and noncitizens and connect the dots between the criminal and immigrant justice movements. This graphic describes some of these campaigns. If you would like support leading similar policy efforts of your own, please feel free to reach out to Rose Cahn, rcahn@ilrc.org.
Stokeling v. United States: Supreme Court Defines “Crime of Violence”
In Stokeling v. United States, the Supreme Court addressed the definition of a "crime of violence" under the ACCA. This advisory alerts public defenders and immigration advocates to possible immigration challenges caused by Stokeling, and defense strategies.
Advisory About the Immigration Consequences of California Methamphetamine Convictions: Lorenzo v. Sessions
In August 2018, the Ninth Circuit published an opinion holding that methamphetamine as defined under California law is not a controlled substance for federal immigration purposes. In January 2019, however, the court withdrew the published opinion, and issued a non-published opinion that came to the same conclusion. See Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018), withdrawn by Lorenzo v. Whitaker, 913 F.3d 930 (9th Cir. 2019), and unpublished decision at Lorenzo v. Whitaker, 752 F. App'x 482 (9th Cir. Jan. 17, 2019). The case has been remanded to the Board of Immigration Appeals. At
Representing Clients at the Master Calendar Hearing: How to Prepare for an Initial Hearing, with Quick-Reference Checklist
The master calendar hearing is the first hearing in removal proceedings before an immigration judge of the Executive Office for Immigration Review, during which serious substantive decisions can be made in an immigrant’s removal case. Advocates must be well prepared and have a clear case strategy in mind prior to the master calendar hearing, as well as a detailed plan for how to advocate during this hearing. This advisory and accompanying checklist are designed to provide a quick guide for advocates to flag the issues that need to be addressed when representing clients at a master calendar
ILRC Amicus Brief Arguing Validity of Cal. Penal Code 1203.43 Vacaturs
In August 2018, the Board of Immigration Appeals issued a call for amicus briefs to respond to the question of whether an ILRC-sponsored law, California Penal Code 1203.43, effectively vacated convictions for the purposes of federal law. With gratitude for the assistance of Prof. Jennifer Lee Koh, Western State College of Law, and Michael Mehr, the ILRC coordinated 37 other legal services organizations, nonprofits, public defender offices, law school clinics, and law firms, to sign onto an amicus contending that the Board of Immigration Appeals should not treat convictions vacated under Penal
Matter of Velasquez-Rios and 364-Day Misdemeanors
The BIA has held that that it will not give retroactive effect to California Penal Code § 18.5(a) on convictions from before January 1, 2015. It will consider a California misdemeanor conviction from before January 1, 2015 to have a potential sentence of up to one year, while a misdemeanor conviction on or after that date will have a potential sentence of up to 364 days. Having a potential sentence of just 364 days can help some immigrants who are convicted of a crime involving moral turpitude. (Note that this decision does not affect how immigration treats a sentence that actually was imposed
Repairing the Road to Redemption in California
The ILRC is proud to stand with 30 of our partners in the criminal justice reform movement to release this report, Repairing the Road to Redemption in California. Our report is part of a national effort, called #TimeDone, to raise awareness of how many people are affected by the barriers associated with convictions and the extent to which they undermine, economic security, family stability, and public safety.
Amendments to 1473.7
Thanks to the advocacy of the ILRC, CPDA, CACJ, and the ACLU, on September 27, 2018, Governor Brown signed into law amendments to California Penal Code Section 1473.7. The amendments will take effect January 1, 2019. This advisory contains practice tips for advocates and a detailed discussion about the changes to section 1473.7.
Request to Depublish, People v. Landaverde
On May 16, 2018, the California Supreme depublished People v. Landaverde, which had narrowly construed defense counsel’s pre-Padilla duty to advise immigrants about the consequences of a criminal conviction. The ILRC and Mike Mehr filed the request to depublish which was cosigned by 13 public defender offices, 8 immigrant rights and criminal justice groups; and 9 immigrant rights and criminal justice professors and clinics throughout the state.
Selected Defenses to Selected California Crimes
This article is an updated guide to selected California offenses that discusses precedent decisions and other information showing that the offenses avoid at least some adverse immigration consequences.
Defending Your Client in Light of SB 54, the California Values Act
As of January 2018, the California Values Act (SB 54) is the law in California. This sweeping legislation curtails the role of state and local police agencies in federal immigration enforcement. This webinar, tailored to criminal defenders, will provide an overview of the Act’s major provisions and how to incorporate this new law into your defense practice. If you are interested in accessing the recording, please contact Grisel Ruiz, gruiz@ilrc.org.
A Beginner’s Guide to Bond Hearings
Are you thinking about helping detained immigrants? It’s time to get your feet wet. This guide talks you through the initial basic steps to support someone requesting from bond from the immigration judge. This guide includes simple steps to get you started, including how to find your client and what to present to the court.
Case Update: The Domestic Violence Deportation Ground
The domestic violence deportation ground at INA § 237(a)(2)(E) sets out four bases for deportability. Recent Board of Immigration Appeals and federal decisions, including the Supreme Court decision in Sessions v. Dimaya, significantly affect each of the four bases. This advisory will provide a brief overview of the deportation ground, and then outline the recent decisions and how they may affect representation in California and the Ninth Circuit. It includes an appendix analyzing common California offenses as crimes of violence.
Opposing the FIRST STEP Act: Prison Reform Legislation Promises Detrimental Impact to Immigrant Communities
This statement from a coalition of immigrant rights organizations urges members of Congress to vote no on the FIRST STEP Act of 2018 (H.R. 5682). This bill excludes a wide swatch of immigrants, further criminalizes aspects of migration, and fails to address root systemic causes of incarceration nor advance any meaningful criminal justice reform.
Deportation by Any Means Necessary: How Immigration Officials Are Labeling Immigrant Youth as Gang Members
This report details findings from a national survey of legal practitioners concerning the increased use of gang allegations against young immigrants as a means of driving up deportation numbers, at the encouragement of the Trump administration. The report suggests emerging best practices for immigration attorneys to employ in both fighting against unfounded gang allegations and working to mitigate the impact of prior gang involvement.
Los Angeles District Attorney Office Policy Permitting 1473.7 Motions In Cases Without Any NTA or Removal Order
Upon the January 1, 2017 enactment of Penal Code 1473.7, the LA District Attorney took the position that the motions were not ripe unless a final removal order or notice to appear had issued. Thanks to advocacy of organizations and individuals, especially Harland Braun, on April 17, 2018, the LA District Attorney Office changed their policy noting that “the Office is persuaded that the Legislature intended section 1473.7 to apply regardless of whether the moving party has received notice of removal proceedings or a removal order.”
Outdated Editions of the Continuing Education of the Bar California Criminal Law Procedure and Practice
Since 1986, the Continuing Education of the Bar, in its “Crim Law Bible,” California Criminal Law Procedure and Practice, has included a chapter about representing the noncitizen criminal defendant. This chapter and the advice therein is often cited as establishing the prevailing professional norms at the date of any given conviction.
SB 54 and the California Values Act: A Guide for Criminal Defenders
This advisory discusses the provisions of SB 54 (De Leon) and the California Values Act, relevant to criminal defense counsel who represent noncitizen clients. In addition to discussing specific provisions of the California Values Act, this advisory discusses how to incorporate this new law into your defense practice.
Clean Slate for Immigrants: Reducing Felonies to Misdemeanors Using Penal Code § 18.5, Prop 47, Penal Code § 17(b)(3), & Prop 64
In the past four years, California voters and the California Legislature have created many new mechanisms for people to reclassify, vacate, and resentence offenses to eliminate the ongoing impact of criminal convictions. This advisory discusses how these new laws can benefit immigrants and can erase or mitigate certain criminal grounds of removability.
California Criminal and Immigration Laws Passed
This is a summary of the California Criminal and Immigration Laws Passed over the last several years to mitigate the impact of deportations, immigration enforcement, and immigration detention.
New California Pretrial Diversion for Minor Drug Charges
As of January 1, 2018, California has changed its “Deferred Entry of Judgment” program to a true “pretrial diversion” program. See Penal Code § 1000, amended by AB 208. Qualifying defendants charged with minor drug offenses can participate in pretrial diversion without incurring a drug conviction for immigration purposes. This Advisory will discuss how pretrial diversion works, and how to assist immigrants who went through the old Deferred Entry of Judgment.
Know Your Rights: A Guide for Immigrants in the California Criminal Justice System
This guide provides fundamental Know Your Rights information to immigrants in California’s criminal justice system. It provides a review of what immigrants should know once in criminal custody, as well as what to expect if they are transferred to immigration custody.
Representing Clients in Bond Hearings: An Introductory Guide
This introductory guide to representing clients in bond hearings is divided into two sections. The first covers basic bond topics that advocates are likely to encounter when representing any client in a bond hearing. Section two includes a review of more advanced bond topics, including how to challenge mandatory and prolonged detention.
Immigration Consequences of Driving under the Influence
This practice advisory goes through all of the ways that an arrest or conviction for California driving under the influence (DUI) can affect an immigrant, and reviews possible changes to the law. It also will discuss reckless driving as an alternative to DUI.
California Criminal Sentences and Eligibility for Relief
Criminal sentence can have a big impact on immigration status and eligibility for relief. In this Advisory, we discuss how immigration law treats different sentencing dispositions in general, and then apply that to California sentencing law. We talk about how advocates can use California law, including the newly amended Penal Code § 18.5, to help their clients.
Why Community Prosecutors Should Care about the Immigration Consequences of Convictions
Heidi Altman and Angie Junck authored this article for the Association of Prosecuting Attorneys.Originally published in Lex Quod Ordo, the Association of Prosecuting Attorneys Quarterly Newsletter, Winter/Spring 2014, Volume IV, Issue IV. http://www.apainc.org/
Immigration Consequences Primer for District Attorneys
Prepared by Angie Junck and Raha Jorjani, this primer is designed to educate District Attorneys interested in learning more about the immigration impact of criminal convictions.
Judicial Council Forms for Reducing Felonies to Misdemeanors, Vacating Deferred Entry of Judgment Convictions, and Expungements
The Judicial Council of California produces forms for pro se petitioners. The CR-180 and CR-181 forms cover various forms of “clean slate” remedies, including reducing felonies to misdemeanors (17(b)), set asides and dismissals (1203.4), and vacaturs after successful completion of probation (1203.43). The forms also contain a notation to 18.5 which makes clear that felonies reduced to misdemeanors carry a maximum of 364-day sentence.
Rose Cahn’s Testimony before the US Commission on Civil Rights’ Hearing on Collateral Consequences
In May, the US Commission on Civil Rights convened a hearing on collateral consequences. The Commission solicited testimony from thought leaders about the lingering consequences that convictions can cause. Rose Cahn submitted testimony regarding the intersection of crimes and immigration law and laid out clear policy recommendations for jurisdictions interested in mitigating or eliminating the immigration consequences of criminal convictions.