Criminal Defense of Immigrants


§ 20.19 B. Requirement of "Crime"

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In order to trigger a CMT-based ground of removal (whether based on a conviction or “admission” of a CMT), the offense in question must be defined as a “crime” in the jurisdiction in which where the offense was committed.[106]  See § 7.24, supra.

[106] Ex parte Isojoki, 222 Fed. 151 (N.D. Cal. 1915).  See also 22 C.F.R. § 40.21(a)(1) (purposes of determining inadmissibility, the act must constitute a crime under the criminal law of the jurisdiction where the act occurred).




Counsel can argue that a violation of a protective order cannot be considered a CMT unless the criminal prosecutor filed a criminal charge under a criminal statute such as California Penal Code 273.6. A civil court finding that triggers removal under INA 237(a)(2)(E)(ii), 8 U.S.C, 1227(a)(2)(E)(ii) should not be considered a "crime" of moral turpitude. Cf. Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004) (Oregon "violation" judgment in which there was no right to appointed counsel, no right to jury trial, no jail possible, and no right against conviction absent proof beyond a reasonable doubt, did not constitute a "conviction" for immigration purposes).

Even if a "conviction" results, counsel can still argue that violation of a protective order is a regulatory offense, rather than a crime of moral turpitude, because there is nothing inherently wrong with violating a court order; it is just that the judge has forbidden it. Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006) (de minimus battery against a spouse is not a CMT), can also be used to argue that conviction for a technical or de minimis violation of a protective order cannot categorically be considered a CMT.

Ninth Circuit

Afzal v. Gonzales, 203 Fed.Appx. 830, 2006 WL 3054609 (9th Cir. October 27, 2006) (unpublished) (California infraction of petty theft, in violation of Penal Code 490.1, constituted a conviction for immigration purposes because California criminal law considers it a conviction of a crime). This decision does not even mention the governing immigration law on this subject, Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(holding that Oregon violation did not constitute a conviction of a crime, because there was no custody possible for the offense, no right to counsel or jury trial, and no requirement of proof beyond a reasonable doubt). The unpublished Afzal decisions discussion is as follows: The Immigration and Nationality Act (INA) defines the term conviction as a formal judgment of guilt of the alien entered by a court or ... where ... the alien has entered a plea of guilty or nolo contendere ... and ... the judge has ordered some form of punishment, penalty, *832 or restraint. 8 U.S.C. 1101(a)(48)(A). Under California law [c]rimes and public offenses include: [f]elonies; [m]isdemeanors; and [i]nfractions. Cal.Penal Code 16; see also People v. Statum, 28 Cal.4th 682, 122 Cal.Rptr.2d 572, 50 P.3d 355, 365 (2002) (From its earliest days, this court has distinguished between the nature or identity of a crime ... and the class or grade o[f] the crime as being a felony, misdemeanor, or infraction.) (Kennard, J., dissenting). Afzal pleaded nolo contendere to petty theft under California Penal Code 484 charged as an infraction pursuant to Penal Code 490.1. The California court entered a formal judgment of guilt and imposed punishment in the form of a fine. Afzal's unsupported assertion that an infraction is not a crime notwithstanding, there is sufficient authority to establish that he was convicted of a crime within the plain meaning of 8 U.S.C. 1101(a)(48)(A) and California Penal Code 16. (Afzal v. Gonzales, 203 Fed.Appx. 830, 831-832, 2006 WL 3054609 (9th Cir. October 27, 2006).) The panel did not consider that the conviction must be of a crime under immigration law. Its discussion of that point was mistakenly based on California law. However, the question whether a conviction is a conviction of a crime under immigration law is a question of uniform federal immigration law, not state law. The BIA in Eslamizar concluded that a very similar Oregon disposition was not a conviction of a crime, because it did not result from a criminal procedure: there was no jail possible, no jury trial, no right to appointed counsel, and no right to proof beyond a reasonable doubt. A California infraction shares the first three characteristics of the Oregon violation held not to be a crime in Eslamizar. This should be held sufficient to conclude that a California infraction does not constitute a conviction of a crime, and is therefore not a conviction of a crime of moral turpitude.