(A)

Infractions Under Immigration Law.  There is a strong argument that an infraction, under California law, does not constitute a "conviction" under federal immigration law.  Therefore, it does not trigger any of the two dozen grounds of removal that flow from the existsnce of certain convictions.  See Appendix D (Checklist of Grounds of Deportation), in N. Tooby & J. Rollin, Criminal Defense of Immigrants (2007).

 

            The BIA has held that the phrase “judgment of guilt” in the statutory definition of conviction requires that the judgment be issued as part of a criminal proceeding, i.e., “a trial or other proceeding whose purpose it to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[88]  The court found that a “criminal” proceeding under Oregon law[89] that resulted in a finding of guilt was not a conviction for immigration purposes because: the proceeding involved a “violation” rather than a crime; conviction of a violation does not result in any legal disability under Oregon law; the defendant in such proceedings does not have a right to a jury or court-appointed counsel; and the prosecution need only show guilt by a preponderance of the evidence, rather than beyond a reasonable doubt.[90] 

 

            California infractions share three of the four characteristics that led the BIA in Eslamizar to conclude that an Oregon violation did not constitute a conviction of a crime: (1) there is no sentence to incarceration; (2) there is no right to counsel; and (3) there is no right to jury trial.[91]  The only difference between the Oregon statute and the California definition of infraction is that in California, the infraction must be proven beyond a reasonable doubt.[92]  Counse can argue that this single difference does not convert what is essentially a non-criminal procedure, with no jail, jury, or right to counsel, into a criminal conviction.  The rule of lenity dictates that where the statute is ambiguous, the noncitizen facing deportation is entitled to the benefit of any reasonable doubts concerning its meaning.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 16.38 (2007).

 

            A number of important California misdemeanors can be charged as, or reduced to, infractions.  For example, Penal Code § 415 is a misdemeanor with a maximum sentence of 90 days in custody or it can be an infraction.  Penal Code § 19.8.  If it is an infraction, it "is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury.  A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless [arrested and not released]."  Penal Code § 19.6.  Penal Code § 17(d) states an offense (such as a violation of Penal Code § 415, which is listed in Penal Code § 19.8 is an infraction when the prosecution files a complaint charging it as an infraction; or when the court with the defendant's consent determines that the offense is an infraction. 

 

            An order reducing a qualifying misdemeanor to an infraction is in effect a new sentence order, and would be effective as such in immigration proceedings.[93]  Once it has been reduced to an infraction, it is not considered a conviction of a crime, since no jail, jury trial, or appointed counsel are provided.[94]

[88] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004).

[89] Oregon Revised Statutes § 153.076.

[90] Matter of Eslamizar, 23 I. & N. Dec. at 687.

[91] Penal Code § 19.6.

[92] See Penal Code § 19.7 (normal misdemeanor burden of proof applies to infractions).

[93] See LaFarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999) (state court designation of a wobbler offense as a misdemeanor binding on BIA for purpose of applying petty offense exception); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (immigration court must give consideration to state court reduction of California wobbler offense from a felony to a misdemeanor offense; reductions of sentences by state courts are qualitatively different from state expungements, since in modifying a sentence, the state court is determining the nature of the conviction pursuant to state law).

[94] See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(en banc)(guilty finding of third-degree theft, in violation of Ore. Rev. Stat. 164.043, by court under procedures of Ore. Rev. Stat. 153.076, punishable by a maximum fine of $600 but no jail at all, does not constitute a conviction under INA 101(a)(48)(A), INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), since the proceedings do not allow a jury trial, right to court-appointed counsel, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958)(police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes).

SAFE HAVEN -- CONTROLLED SUBSTANCES OFFENSES " SIMPLE POSSESSION OF LESS THAN ONE OUNCE OF MARIJUANA " PRACTICE ADVISORY
Angie Junck of the Immigrant Legal Resource Center, and Sara Edelstein, of the Santa Clara County Public Defenders Office, have published a Practice Advisory on the Immigration Consequences of a Plea to Calif. H&S 11357(b), Now an Infraction. See www.ilrc.org. After Jan. 1, 2011, California Health and Safety Code 11357(b), which prohibits possession of not more than 28.5 grams of marijuana, will be treated as an infraction. They point out that this has several immigration advantages: (1) A first conviction for simple possession will not trigger deportation under the less than one ounce exception to the controlled substances conviction ground of deportation. INA 237(a)(2)(B)(1), 8 U.S.C. 1227(a)(2)(B)(1). (2) It would, however, make a noncitizen inadmissible. This conviction would qualify for a waiver of inadmissibility of the controlled substances conviction/admission ground of inadmissibility. INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1227(a)(2)(A)(i)(II). The waiver is under INA 212(h), 8 U.S.C. 1182(h). It may, however, be quite difficult to obtain a grant of this waiver. (3) Because Health & Safety Code 11357(b) is now an infraction, immigration advocates have an argument that it is not a conviction for immigration purposes, and therefore would not trigger deportation or inadmissibility. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(Oregon violation held not a conviction, because of four factors: no possible jail sentence, no right to appointed counsel, no right to jury trial, and no right to proof beyond a reasonable doubt). A California infraction is similar, sharing the first three factors. It is different, however, because a California infraction must be proven beyond a reasonable doubt. It is therefore somewhat unclear whether a California infraction, such as this one, would not be considered a conviction under Eslamizar. Because courts have not yet ruled on this argument, however, criminal defense counsel must conservatively assume that an infraction will make noncitizens inadmissible. (4) Even if it is held to be a conviction for immigration purposes, a California infraction does not constitute a misdemeanor and therefore will not disqualify a noncitizen for Temporary Protected Status, which is not available if the noncitizen has a felony or two misdemeanor convictions. Alternative pleas include simple possession of a controlled substance under other statutes, Health & Safety Code 11350(a) or 11377(a) with the controlled substance unspecified; accessory after the fact, under Penal Code 32; driving under the influence of more than 0.08% alcohol, under Vehicle Code 23152(b); disturbing the peace, under Penal Code 415, or disorderly conduct offenses under Penal Code 647(c),(e), or (h).