Adjusting Prosecutor Filing and Disposition (FAD) Standards to Recognize Disproportionate Consequences for Non-Citizens
This document provides guidelines to prosecutor offices on considering the immigration consequences of criminal cases.
Supreme Court Rules on Sexual Abuse of a Minor
Cal. P.C. § 261.5(c) is not an aggravated felony, but the law may change for the worse on § 261.5(d)Esquivel Quintana v. AG Sessions (May 30, 2017)
Understanding Allegations of Gang Membership/Affiliation in Immigration Cases
Immigrants who are alleged to be involved with gangs are top immigration enforcement priorities for the Department of Homeland Security (DHS). This is true even if they have no criminal convictions and DHS is targeting them based on allegations alone. If such individuals choose to apply for immigration benefits, they may be exposing themselves to serious risk. This practice advisory discusses what gangs and gang databases are, how allegations of gang membership arise in immigration cases, the over-inclusive process law enforcement employs to allege gang membership, and strategies to identify
Sample Post-Conviction Relief Intake Form in English & Spanish
This intake form, available in both English and Spanish, is designed to assist legal service providers and nonprofit organizations interested in screening clients for immigrant post-conviction relief services.
Redacted Sample Penal Code 1473.7 Motion to Vacate
Students at the UC Irvine Immigrant Rights Clinic prepared a Penal Code 1473.7 motion to vacate for one of their clients and offered it as a resource for others filing similar motions. This motion is a reference tool only, and should not be used as a template or a model, nor should it be reproduced without substantial alterations. If you are filing a 1473.7 motion, you must perform your own legal research and draft your own materials, as the law in this area is rapidly changing and case-specific motions have significantly higher success rates in criminal courts.
Practice Advisory: Aggravated Felonies
The immigration statute designates certain types of crimes as “aggravated felonies.” See INA § 101(a)(43), 8 USC § 1101(a)(43). These are the most dangerous type of convictions for a noncitizen. Despite the name, this definition reaches offenses that are neither felonies nor aggravated. It can include selling $10 worth of marijuana, a misdemeanor shoplifting offense with a one-year suspended sentence, or failure to appear at a criminal hearing. The person must be convicted of the offense, not merely commit it, for aggravated felony penalties to apply.
New Law That Will Help Vacate Legally Invalid Convictions: Advisory about Penal Code 1473.7
A new law will go into effect January 1, 2017 that will provide people who are no longer in custody with a new way to vacate legally invalid convictions. This advisory discusses how the law can help immigrants erase old convictions thus opening up new pathways to immigration relief.
Three New Laws Will Help California Immigrants
AB 813 Provides a New Vehicle to Vacate a California ConvictionSB 1242 Makes the 364-Day Misdemeanor Law RetroactiveSB 2792 (TRUTH Act) Protects the Rights of Immigrants in California Jails
Immigration Impact: Analysis of the Adult Use of Marijuana Act
This report provides a thorough analysis of California’s Proposition 64, or The Adult Use of Marijuana Act, and its potential impact on immigrants with marijuana offenses. The report covers the intersection of immigration and criminal law, the current impact of marijuana offenses on a variety of immigration outcomes, and the ways in which Proposition 64 could help mitigate the immigration consequences of some marijuana-related drug offenses. This report was generously funded by Drug Policy Action.
Advisory on Deportable Crimes of Domestic Violence: Matter of H. Estrada
A noncitizen who is convicted of a “crime of domestic violence” is deportable. INA 237(a)(2)(E)(i), 8 USC 1227(a)(2)(E)(i). In Matter of H. Estrada the BIA reaffirmed that the categorical approach must be used to determine that the offense is a “crime of violence” under 18 USC § 16, but it held that the circumstance-specific approach can be used to determine whether the victim and defendant shared the required domestic relationship. Under that approach, the BIA found that ICE can use any reliable evidence, including evidence from outside the record of conviction, to try to meet its burden of
Immigration Benefits of Proposition 47
In November 2014, California voters passed Proposition 47, a historic record changing opportunity. The below resources are aimed at educating community members, advocates, and lawyers on the immigration benefits of Proposition 47.
Manual on Prop 47 & Other Post-Conviction Relief for Immigrants
The Immigrant Legal Resource Center, with our partners the Lawyers Committee for Civil Rights in the San Francisco Bay Area and Californians for Safety and Justice, are pleased to provide a manual on how to help immigrants get post-conviction relief in California. Here is a link to the manual, and a separate link to the Practice Aids in the Appendices.
Brief Arguing that an Inconclusive Record of Conviction Establishes Eligibility for Relief, because Moncrieffe Overruled Young
In Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) the Ninth Circuit held that if a statute is divisible, an applicant for relief must provide evidence from the reviewable record of conviction that proves that the conviction does not bar eligibility, under the modified categorical approach. An inconclusive record of conviction is not sufficient.
New California Drug Provision Helps Immigrants: Plea Withdrawal after Deferred Entry of Judgment (DEJ)
Effective January 1, 2016, a new California drug law will help defendants avoid catastrophic immigration consequences for minor offenses.
Infographic on AB 1343
AB 1343 is a new law that safeguards due process for immigrants inthe criminal justice system by ensuring that immigrants are provided access to fair, honest, and competent legal advice. Check out this infographic to learn more!
Practice Advisory: Cal Penal Code § 273a(b) Is Not a Deportable Crime of Child Abuse
The BIA stated that Cal PC § 273a(b) is not a deportable crime of child abuse, in Matter of Mendoza-Osorio.
Chart: Immigration Effect of Post-Conviction Relief
This chart shows the effect that immigration law gives to different types of state post-conviction relief, including the new California Penal Code § 1203.43.
Protocols for Ensuring Effective Defense of Noncitizen Defendants in California
A review of four different models used throughout California, in advising noncitizen defendants of the immigration consequences of criminal offenses. This protocol provides interviews with defenders currently practicing these models, as well as practical tips and resources in establishing similar models in your jurisdiction.
Some Felonies Should No Longer Be “Crimes of Violence” for Immigration Purposes under Johnson v. United States
This advisory discusses how the Supreme Court's opinion in Johnson v. United States may affect selected offenses under California law, and what criminal defense and immigration advocates can do now.
Crimes-Related Bars to DAPA & DACA
This is an annotated chart that provides quick access to the differing crimes bars to DAPA and DACA.
Great Ninth Circuit Case on Divisible Statutes: California Burglary Never Is “Attempted Theft”
In Rendon v. Holder the Ninth Circuit clarified when a statute is truly “divisible” under the categorical approach, and held that California burglary (Penal Code § 459) never constitutes the aggravated felony “attempted theft.” This holding also means that California burglary never is a crime involving moral turpitude, under the categorical approach.
California Defines Misdemeanor as Maximum 364 Days
On July 21, 2014, Governor Brown signed into law a provision that will make a California misdemeanor have a maximum possible sentence of 364 days. This will provide crucial help to immigrants convicted of minor offenses.
Expansion of the Former § 212(c) Relief
A permanent resident with convictions from before April 1, 1997 may be eligible for a powerful waiver under the former INA § 212(c)—even if the offense was an aggravated felony. Yielding to the U.S. Supreme Court opinion in Judulang, the BIA has dramatically increased the type of offenses that can be waived. See practice advisory by the NIPNLG and IDP, entitled "Matter of Abdelghany: Implications for LPRs Seeking § 212(c) Relief" at https://nationalimmigrationproject.org/PDFs/practitioners/practice_advi….
Transportation under H&S §§ 11352 and 11379 will no longer be an immigration safe plea beginning 1/1/2014
Starting January 1, 2014, a conviction for transportation under H&S 11352 and 11379 will automatically qualify as a drug trafficking aggravated felony. AB 721, signed into law on October 3, 2013, redefines transport to include only transportation for sale and now excludes transportation for personal use.
Moncrieffe and Olivas-Motta: Fourteen Crim/Imm Defenses in the Ninth Circuit
In Moncrieffe v. Holder, the U.S. Supreme Court reaffirmed that the full categorical approach applies in immigration proceedings. A result is that where the criminal statute defines the offense more broadly than the immigration definition at issue, the conviction will not trigger the immigration penalty.