quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
§ N.9: Domestic Violence; Child Abuse; Stalking<br />
(For more in<strong>for</strong>mation, see Defending Immigrants in the Ninth Circuit,<br />
Chapter 6, §§ 6.2 <strong>and</strong> 6.15, www.ilrc.org/criminal.php)<br />
A. Conviction of a Crime of Domestic Violence<br />
B. Civil or Criminal Court Finding of Violation of a Domestic Violence Protective Order<br />
C. Conviction of a Crime of Child Abuse, Neglect or Ab<strong>and</strong>onment<br />
D. Conviction of Stalking<br />
A noncitizen is deportable under the domestic violence ground if he or she is convicted of (a)<br />
a state or federal “crime of domestic violence,” (b) a crime of child abuse, neglect or<br />
ab<strong>and</strong>onment, or (c) stalking. The person also is deportable if found in civil or criminal court to<br />
have violated certain sections of a domestic violence protective order. 8 USC § 1227(a)(2)(E),<br />
INA § 237(a)(2)(E). This deportability ground has an effective date: the convictions or the<br />
behavior that is the subject of the finding of violation of the protective order must occur after<br />
September 30, 1996 <strong>and</strong> after the noncitizen was admitted to the United States.<br />
A. Conviction of a Crime of Domestic Violence<br />
Alert on Domestic Violence Cases: Because of 2009 Supreme Court rulings, it is possible<br />
that Ninth Circuit will reconsider past precedent <strong>and</strong> create a new rule that makes it easier <strong>for</strong><br />
<strong>immigration</strong> authorities to prove the “domestic relationship” element in a deportable crime of<br />
domestic violence. Please read these materials carefully <strong>for</strong> advice on how to h<strong>and</strong>le<br />
domestic violence cases in light of this possible change.<br />
Bottom Line Instructions:<br />
A defendant is deportable <strong>for</strong> conviction of a “crime of domestic violence” based on (a) a<br />
conviction of a “crime of violence” that is (b) against a victim with whom he or she has had a<br />
certain domestic relationship, defined in the deportation ground. The good news is that in many<br />
cases, criminal defense counsel can craft a plea that both satisfies the prosecution <strong>and</strong> avoids the<br />
deportation ground. This section will discuss the following options.<br />
a. A plea to an offense that does not meet the technical definition of “crime of violence” is not a<br />
conviction of a “crime of domestic violence,” even if it is clear that the defendant <strong>and</strong> victim<br />
had a domestic relationship. See discussion below <strong>and</strong> Chart <strong>for</strong> offenses that may not<br />
constitute a crime of violence, <strong>for</strong> example P.C. §§ 243(a), 243(e), 236, <strong>and</strong> 136.1(b). These<br />
require a carefully crafted record of conviction. See Part 2, infra, <strong>for</strong> further discussion.<br />
b. A plea to a “crime of violence” is not a “crime of domestic violence” if (a) the designated<br />
victim is someone not protected under the state’s DV laws (e.g., the new boyfriend, a<br />
N-86 Immigrant Legal Resource Center