Criminal Defense of Immigrants


§ 19.5 1. State Criminal Case Law - Applicability

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The question of whether an offense, as defined by the elements required for conviction, triggers a ground of deportation is a question of federal immigration law.[14]  Since some offenses are crimes in some states, but not in others, it is necessary to develop a federal standard that can be applied nationwide.[15]  The consequences a state chooses to place on the conviction in its own courts under its own laws cannot control the consequences given to the conviction in a federal deportation proceeding.[16]  When analyzing whether a state conviction triggers a ground of removal, however, the law of the state in which the conviction was prosecuted must be considered in determining (A) the elements of the offense, (B) whether the offense is considered a felony or a misdemeanor, (C) the sentence imposed, and (D) the maximum possible sentence.  See § 16.35, infra.


[14] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (label placed upon an offense by the state statutory scheme is not controlling, for purposes of determining whether the offense triggers removal); Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), aff’d, 347 U.S. 637, 74 S.Ct. 822 (rejecting argument that the California crime of assault with a deadly weapon was not a CMT per se because a California case had held that assault with a deadly weapon was not a crime involving moral turpitude for purposes of disbarring an attorney); Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 111 App. D.C. 197, 295 F.2d 184 (D.C. Cir. 1960), cert. denied sub nom. Wyngaard v. Kennedy, 368 U.S. 926, 82 S.Ct. 362 (1961).

[15] See Nehme v. INS, 252 F.3d 415, 429 (5th Cir. 2001) (“[t]o avoid leaving the requirements for citizenship to state control, the court devised a federal standard to determine whether the petitioner had committed acts constituting a crime of moral turpitude”).

[16] See Lisbey v. Gonzalez, 420 F.3d 930, 933 (9th Cir. Aug. 22, 2005) (the fact that California does not list sexual battery as a violent felony for sentencing purposes is not dispositive of whether the offense is a crime of violence for immigration purposes); Franklin v. INS, 72 F.3d 571, 572-573 (8th Cir. 1995), cert. denied, 519 U.S. 834, 117 S.Ct. 105 (1996); Cabral v. INS, 15 F.3d 193, 196 n.5 (1st Cir. 1994); Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff’d, 374 U.S. 637 (1954); Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA 1976); Matter of H, 7 I. & N. Dec. 359, 360 (BIA 1956).




Matter of Fernando Salas-Lopez, 2007 WL 1724884 (BIA May 22, 2007) (unpublished) (California conviction for violation of Penal Code 496d(a), receipt of stolen vehicle, is not categorically an aggravated felony under INA 101(a)(43)(G) because "[c]oncealment of stolen property may well not be the same as aiding and abetting the receiving of stolen property. Even if done with knowledge that the property is stolen, the concealment of the stolen property could be more like acting as an accessory after the fact to the theft or to the receipt of stolen property.").

Ninth Circuit

Penuliar v. Ashcroft, 528 F.3d 603 (9th Cir. Jun. 10, 2008) (California conviction for evading an officer, in violation of California Vehicle Code 2800.2(a) is not categorically an aggravated felony crime of violence for immigration purposes).