The current update includes changes that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2017 update.
Title 18 of the United States Code §16(b) residual clause declared void. In Sessions v Dimaya (2018) ___ US ___, 138 S Ct 1204, the Supreme Court held that the residual clause of 18 USC §16(b) was void for vagueness, rejecting the “ordinary case” test that had been in use to define a crime of violence. Following Dimaya, a California felony residential burglary (Pen C §§459 and 460(a)) is not an aggravated felony for immigration purposes. See chap 7.
Categorical analysis and domestic violence protective orders. In Garcia-Hernandez v Boente (7th Cir 2017) 847 F3d 869, the Seventh Circuit determined that a conviction and the strict categorical analysis may not be required for the “violators of protection orders” ground of deportation under 8 USC §1227(a)(2)(E)(ii). This is contrary to the law in the Ninth Circuit, as expressed in Szalai v Holder (9th Cir 2009) 572 F3d 975. The Board of Immigration Appeals (BIA) has decided to follow the Seventh Circuit and reject the categorical approach in cases involving Immigration and Naturalization Act (INA) §237(a)(2)(E)(ii). Matter of Obshatko (BIA 2017) 27 I&N Dec 173. See §3.32.
California Values Act. The California Values Act (Govt C §§7284–7284.12) prohibits law enforcement from holding an individual for any amount of time beyond their criminal custody to facilitate an immigration arrest. The Act further prohibits the sharing of information with Immigration and Customs Enforcement (ICE) regarding a person’s release date unless that information is available to the public or complies with the exceptions listed in the TRUST Act (Govt C §7282.5). See Govt C §7284.6(a). It also prohibits giving ICE personal information, participation in arrests, allowing ICE exclusive desk space, using ICE interpreters, and other forms of cooperation. See chap 4.
Individualized bond hearings in mandatory detention proceedings. The Supreme Court has decided in Jennings v Rodriguez (2018) ___US___, 138 S Ct 830, that the Ninth Circuit’s interpretation of the Immigration and Naturalization Act (INA) statutory authority relating to detention of aliens does not implicitly limit detention to 6 months nor does it require periodic bond hearings. However, the issue of what constitutional due process requires has been remanded and is still pending. See §4.18.
Pretrial diversion. Effective January 1, 2018, defendants may participate in rehabilitation programs without risking a conviction for immigration purposes. Penal Code §1000 (formerly Deferred Entry of Judgment (DEJ)) has been amended to no longer require a guilty plea to participate in diversion. See §20.68.
Retroactivity of Pen C §1473.7. The post-conviction relief available under Pen C §1473.7 may be applied to guilty pleas entered before its effective date. People v Perez (2018) 19 CA5th 818, 828. See §20.30A.
Sexual abuse of a minor clarified. In Quintero-Cisneros v Sessions (9th Cir 2018) 891 F3d 1197, 1200, the Ninth Circuit held that Esquivel-Quintana v Sessions (2017) ___ US ___, 137 S Ct 1562, applies “mainly to statutory rape offenses,” and that the definition of sexual abuse of a minor set forth in U.S. v Medina-Villa (9th Cir 2009) 567 F3d 507, applies to “all other offenses.” The Medina-Villa definition requires proof of three elements: (1) sexual conduct, (2) with a minor, (3) that constitutes abuse. See §12.5.
Confidentiality of immigration status. Evidence of a person’s immigration status may not be disclosed in open court by a party or his or her attorney, unless the judge first determines admissibility in camera, although this does not prohibit a person or his or her attorney from voluntarily revealing his or her immigration status. Evid C §351.4(a). See §4.19.
Asylum and withholding of removal. New limitations have been placed on asylum claims based on domestic abuse and gang violence. See Matter of A-B- (AG 2018) 27 I&N Dec 316. See §22.40.