quick reference chart and notes for determining immigration - ILRC

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