Criminal Defense of Immigrants


Chapter 15. Overview of Substance and Procedure


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Ninth Circuit

The Immigrant Legal Resource Center has published a Practice Advisory on safe havens in California theft cases, under new Ninth Circuit law. 1. Avoid a sentence of one year or more in custody. 2. If that is not possible, try to obtain one of the following dispositions: a. If one year or more will be imposed on a single theft count, but loss to the victim(s) does not exceed $10k, plead specifically to a fraud offense contained in Penal Code 484 (taking by deceit, embezzlement) or to theft of labor; b. If the loss to the victim(s) exceeds $10k, but no one-year will be imposed, plead specifically to non-fraud theft (taking by stealth, stealing); c. If both a one-year sentence is imposed and a $10k loss was suffered, plead to two counts, and where possible follow above instructions on each. One count with both of those might well be an AF. See Nugent v. Ashcroft, 367 F.3d 162, 174-175 (3d Cir. 2004); d. Even if you can't do that, the conviction should not be an aggravated felony under Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. Aug. 2015). Never assume that a prior conviction is an aggravated felony based on a one-year sentence or $10,000 loss " regardless of what the record of conviction says. Law underlying instructions Fraud and theft both are potential aggravated felonies, under different circumstances. 8 USC 1101(a)(43)(G), (M). Fraud (taking by deceit) becomes an AF if loss to the victim/s exceeds $10k, but does not become an AF if a 1-yr sentence is imposed. Thus a plea to embezzlement or other fraud with a sentence of a year or more imposed is not an AF, as long as no $10k loss. Theft (taking by stealth) of property is not an AF if loss to victim/s exceeds $10k, but is an AF if 1 year or more is imposed on a single count. Theft (stealing) can take a loss exceeding $10k, as long as sentence is less than 1 year. The Ninth Circuit and BIA have long recognized these distinctions. See discussion in Matter of Garcia-Madruga, 24 I&N Dec. 436, 440 (BIA 2008), citing Soliman v. Gonzales, 419 F.3d 276, 282-284 (4th Cir. 2005); Carlos-Blaza v. Holder, 611 F.3d 583 (9th Cir. 2010); Carrillo-Jaime v. Holder, 572 F.3d 747, 752 (9th Cir. 2009); U.S. v. Rivera, 658 F.3d 1073, 1077 (9th Cir. 2011). Previously PC 484 was considered to be divisible between its theft and fraud offenses (as well as theft of labor, which also is not an AF based one sentence of 1 yr or more). Although PC 484 was not categorically (automatically) theft if a year or more was imposed, it might have been if the record identified a theft rather than a fraud offense. See, e.g., Garcia v. Lynch, 786 F.3d 789, 794-795 (9th Cir. 2015) (if specific theory of theft under PC 484, 487 is not identified, a sentence of one year or more does not make the offense an aggravated felony; court did not reach the issue of divisibility.) This was the reason for the advice to make a specific plea to prevent this. Under Descamps, however, PC 484 is not divisible because a jury is not required to decide unanimously between the theories of the theft in order to find guilt. (For more on this see How to Use the Categorical Approach Now at Therefore authorities may not look to the record to see whether the offense involved theft or fraud, and no conviction is an AF based on a sentence of a year or more. Lopez-Valencia v. Lynch, supra. As of this writing an en banc petition for Lopez-Valencia still could be filed. The immigration authorities might misapply the law. Therefore, the specific plea strategy still is recommended. Thanks to Katherine Brady