Immigration consequences are one of the primary concerns for non-citizens charged with a California Crime. A conviction of a California State misdemeanor or felony can affect your ability to remain in this country or re-enter it. Federal law and California law are two distinct areas and executive officers don’t have powers under both authorities. They converge, however, when an individual is not a US Citizen and is charged with a California State Crime that is “analogous” or the same as a Federal Offense.
If the Federal Crime would result in deportation or denial of entry, and the California Crime is identical, then US Customs and Law Enforcement have authority to arrest and deport or deny them entry when crossing the border.
Problems for immigrants or aliens (defined in 8 USCA 1101 as “any person not a citizen or national of the United States”) arise whenever the California Crime they are Charged with implicates two federal statutes:
California law does not define whether a crime implicates federal immigration problems. That’s left up to the federal government.
Immigration Courts typically use two tests to determine whether a California Crime fits one of the above federal statutes (ie 8 USC 1227(a) or 8 USC 1182(a)). These tests are colloquially known as the “Categorical Approach” and the “Modified Categorical Approach” and are further defined in Taylor vs. U.S. (495 U.S. 575) and Shepard vs. U.S. (544 U.S. 13).
Whether one test or the other will be used depends on the “divisibility” (meaning a CA statute carries both immigration consequences and no immigration consequences) of the California Criminal Statute the defendant was convicted of. A conviction of a statute that meets element for element one found in either 8 USCA 1227(a) or 8 USCA 1182(a) will use the Categorical Approach. A statute that is divisible, will use the Modified Categorical Approach.
Depending on what approach is used determines what parts of the record an immigration officer will look at when determining deportation or denial of admission.
The Charges one is Convicted of determine whether the California State Crime is Deportable or will Prevent Re-Entry but some of the most common convictions include:
Our San Diego Criminal Defense Attorneys are skilled in California Criminal Cases that implicate Federal Immigration Problems. If a plea deal is negotiated, having an attorney that understands the implications of federal immigration law is essential to remaining on US soil.
If you are charged with a California Crime and are not a citizen, contact our experienced attorneys for a free consultation by calling 619-708-2073 or emailing us at attorneys@hullingerfirm.com. We will review your status and pending charges to formulate a strategy for success.