quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 neighbor), or (b) most probably, the crime involves violence against property as opposed to a person. See Parts 3, 4, infra. c. If you can’t avoid a plea to a crime of violence in which the victim actually had the required domestic relationship, make every effort to keep the domestic relationship from being described in the reviewable record of conviction. This would protect under current law. However, current law may change to permit the government to look beyond the record of conviction to establish the domestic relationship, so this is not a secure strategy and should be avoided where possible. See Part 5, infra. d. At least with the pleas described in (a) and (b) above, it is safe to accept domestic violence counseling, anger management courses, stay-away orders, etc. as conditions of probation. e. While not good, it is not always fatal to immigration status to become deportable under the DV ground. It often is less bad for an undocumented person than a permanent resident, and in all cases the consequences change depending on an individual’s history in the U.S. If you have difficult choices about what to give up in exchange for a plea in a particular case, consult with an immigration law expert. Deportable Crime of Domestic Violence: Discussion 1. Overview A “crime of domestic violence” is a violent crime against a person with whom the defendant has or had a certain kind of domestic relationship. Conviction after admission and after September 30, 1996 is a basis for deportation. 129 The deportation ground defines “crime of domestic violence” to include any crime of violence, as defined in 18 USC § 16, against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic violence or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from the individual’s acts under the domestic or family violence laws of the United States or any State, Indian Tribal government, or unit of local government A conviction is not a deportable “crime of domestic violence” unless ICE (immigration prosecutors) proves both factors: that the offense is a crime of violence under 18 USC § 16, and that the victim and defendant had the domestic relationship described above. In other words, an offense that does not meet the technical definition of crime of violence under 18 USC § 16 will not be held to be a deportable crime of domestic violence even if there is proof that the victim 129 INA § 237(a)(2)(E)(i), 8 USC § 1227(a)(2)(E)(i). Immigrant Legal Resource Center N-87
California Quick Reference Chart and Notes February 2010 and defendant share a domestic relationship. Likewise, conviction of a crime of violence is not a crime of domestic violence unless there is adequate proof of the domestic relationship. The surest strategy to avoid a domestic violence conviction is to avoid conviction of a “crime of violence” as defined under 18 USC § 16. ICE must prove that the conviction is of a crime of violence, using the categorical approach. Another approach is to plead to a crime of violence but against a victim with whom the defendant does not have a domestic relationship, e.g. a friend of the ex-wife, a neighbor, the police officer. As long as the noncitizen successfully pleads to an offense that either is not a crime of violence or is a crime of violence against a victim who does not have the required domestic relationship, the offense cannot be termed a domestic violence offense and it is safe to accept probation conditions such as domestic violence or anger management counseling or stay away orders. Another strategy is to avoid identification of the victim as a person who has a qualifying domestic relationship with the defendant, even if the victim really does have the relationship. However, this strategy is riskier because the government will argue that under recent Supreme Court precedent it may use an expanded class of evidence, beyond what is allowed under the categorical approach, to establish the domestic relationship. Example: Abe, Barry and Carlos all are charged with domestic violence. Abe pleads to misdemeanor criminal threat under P.C. § 422, which is a crime of violence, but he keeps any mention of his and the victim’s domestic relationship out of the record of conviction. However, at this time it is not clear whether the law may change to permit ICE to go beyond the criminal record to prove the domestic relationship, so Abe is in a risky position. Barry had threatened both his ex-wife and her new boyfriend. He pleads to criminal threat under P.C. § 422, specifically naming the boyfriend as the victim. Because a new boyfriend is not protected under state DV laws or listed in the deportation ground, there is no qualifying domestic relationship, and the crime of violence is not a crime of domestic violence. Carlos pleads to misdemeanor spousal abuse under P.C. § 243(e). Courts have held that this is “divisible” as a crime of violence, because the offense can be committed by conduct ranging from actual violence to mere offensive touching. If defense counsel ensures that the reviewable record of conviction does not contain proof that actual violence was involved, the offense will not be held to be a crime of violence and therefore is not a “crime of domestic violence” – even though the domestic relationship is established as an element of the offense. Barry and Carlos can be given a stay-away order and assignment to domestic violence counseling as a condition of probation, without the offense being treated as a crime of domestic violence. This is because their criminal records conclusively show that the offense is not a crime of domestic violence: in Barry’s it is clear that the victim does not have the domestic relationship, in Carlos’ it is clear that there is no “crime of violence.” The situation is less clear in Abe’s case. N-88 Immigrant Legal Resource Center
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