California Case Law
In People v. Patterson (2017) 2 Cal.5th 885, the California appeals found that although defense counsel signed "this form", it, standing alone, is akin to the “generic advisement” required of the court under Penal Code section 1016.5, subdivision (a) addressed in 2 Cal.5th 885, 897-898, and it similarly “is not designed, nor does it operate, as a substitute for such advice” of defense counsel regarding the applicable immigration consequences in a given case."
What is the Tahl Form/plea Form
What is PC 1000 [as enacted in 2018]?
The SCOTUS case that addressed the Sixth Amendment right to counsel in criminal proceedings, stating "it is our responsibility under the Constitution to ensure that no criminal defendant-whether citizen or not-is left to the mercies of incompetent counsel"
Padilla v. Kentucky (2010)
This area of law is the intersection between immigration law and criminal law.
What is crimmigration law?
Any one of numerous grounds listed in INA §212(a), that make a person ineligible for lawful admission, ie. trying to enter, into the United States.
What is the concept of inadmissibility.
In, People v. Espinoza (2018) 27 Cal.App.5th 908, 915, counsel could not recall what advisements he discussed with defendant, and his [what?] did not refer to any discussion of immigration consequences.
What are his notes?
This California legislation codifies Padilla v. Kentucky.
What is PC 1016.2
In Gideon v. Wainwright,372 US 335 (1963) the Supreme Court established the right to the assistance of counsel in all criminal prosecutions and required courts to provide counsel for defendants unable to hire counsel under what amendment?
What is the Sixth Amendment?
In People v. Bautista, 115 Cal.App.4th 229 (2004), the California Appeals Court set forth the strategy to avoid adverse immigration consequences by offering to plead to a different but related offense that avoids the adverse consequence, or; if the case warrants otherwise, do what instead?
What is plead up?
INA 237(a) mainly applies to lawful permanent residents to strip them of their legal status using this legal concept?
What is deportability?
In People v. Vargas; G056042; 6/26/19; C/A 4th Div. 3, the California appeals allowed a conviction to be overturned based on a legal invalidity by reviewing evidence of the defendant’s family ties in the US, and abroad, his length of residence in the US, and his “straight up plea”, ie. plea directly to the court with no evidence of a negotiated disposition. What did the court call such evidence?
What is contemporary evidence?
This law has provided a critical opportunity for noncitizens to challenge convictions when the noncitizen failed to meaningfully understand, knowingly accept, or defend against the immigration consequences of a crime while also alleviating the burden of making a formal finding of IAC against defense attorneys.
PC 1437.7
In this 2003 case upholding the mandatory detention statute (INA 236), which is being held for months to years with no right to release on an immigration bail for any reason as a result of civil/administrative violations after having completed their criminal sentences, the Justice Department in 2016 came out and aid they provided erroneous evidence that lead to their win in this case.
What is Demore v. Kim, 538 U.S. 510 (2003)?
For more see https://www.wsj.com/articles/justice-department-gave-supreme-court-incorrect-data-in-immigration-case-1472569756
What document must we try to avoid incorporating into the factual basis of the plea agreement?
What is the arrest report?
This foreign born defendant holds a "greencard."
What is a lawful permanent resident, aka LPR?
In People v. Martinez (2013) 57 Cal.4th 555, 560, the court held that a deported noncitizen who cannot return “loses his job, his friends, his home, and maybe even his children” and such a defendant may view [what?] consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges).
What are immigration consequences?
The prosecution, in the interests of justice, and in furtherance of the findings and declarations of Section 1016.2 , shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution
What is PC 1016.3(b)?
In November 2019, the justices heard arguments over the administration’s decision to rescind what program?This Obama-era provision halted the deportation of undocumented immigrants brought to the U.S. at an early age, but was not a protected legal status.
What is Deferred Action for Childhood Arrivals (DACA)?
These type of adjudications are not convictions for immigration purposes?
What are juvenile adjudications?
For more see https://www.ilrc.org/sites/default/files/resources/juvenile_delinquency_cheat_sheet_ilrc_jan_2018_update_0.pdf
This foreign defendant came into the US without inspection and admission usually through the desert, hidden in a trunk or through some undetected means?
What is an EWI (entry without inspection)?
The California Appeals found IAC when defense counsel testified that the plea agreement was the most advantageous criminal disposition available, but failed to consider the most advantageous [what?] disposition. People v. Soriano, (1987) 194 Cal. App. 3d 1470
What is the most advantageous immigration disposition?
This state law may prevent local jails from responding to notification and transfer requests, but it does not protect against the immigration consequences of criminal conduct or conviction.
What is the California Values Act?
For more see https://www.ilrc.org/sites/default/files/resources/sb54_advisory-gr-20180208.pdf
What SCOTUS case opined "[a]voiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time-accordingly defendant would have rejected any plea leading to deportation — even if it shaved off prison time — in favor of throwing a 'Hail Mary' at trial"
Lee v. US, 137 S. Ct. 1958, 1966-67 (2017)
With a few exceptions, immigration authorities must use this approach to determine whether a criminal conviction triggers a ground of removal.
What is the categorical approach.
For more see https://www.ilrc.org/sites/default/files/resources/how_to_use_the_categorical_approach_now_dec_2019_0.pdf
This is the legal term for a "deportation" after 1997 Congressional Amendments to the Immigration & Nationality Act under the Illegal Immigration Reform and Immigration Responsibility Act that made it much more difficult for foreign born defendants to avoid adverse immigration consequences.
What is the term removal?