Tooby's California Post-Conviction Relief for Immigrants

(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).