quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
a crime of violence under the 18 USC § 16(a) standard, because the restraint of the victim
can be accomplished without force. 130
‣ A statute that can be violated by de minimus touching (“mere offensive touching”) is not a
crime of violence under 18 USC § 16, unless there is evidence in the record of conviction
that actual violence was involved. Neither battery nor battery against a spouse under Calif.
PC § 243(a), 243(e) are crimes of violence, unless the record of conviction shows that force
amounting to actual violence was used. 131 Counsel should assume that P.C. § 273.5 will be
held a crime of domestic violence.
‣ A crime of violence requires an intent to commit active violence, and a misdemeanor that
involves negligence or recklessness is not a “crime of violence,” e.g. negligent infliction of
injury, driving under the influence with injury. 132
In all of these cases, counsel should be sure that the reviewable record of conviction does
not establish that the defendant intentionally used actual violent force in committing the
offense and where possible, beneficial facts/statements that the incident only involved a
mere offensive touching or should be included.
‣ A threat to commit actual violence is a crime of violence, even as a misdemeanor. The
threat of use of force may be considered a crime of violence under 18 USC § 16, even if no
force is used. The Ninth Circuit held that the offense of making a criminal or terrorist threat
under Calif. PC § 422 is a crime of violence.” 133 Counsel must assume that misdemeanor
P.C. §§ 273.5(a) and 245(a) are crimes of violence.
b. California felonies as “crimes of violence”
A felony conviction can be a crime of violence under either of two tests. First, like a
misdemeanor, it will be held a crime of violence under 18 USC § 16(a) if it has as an element the
use, or threatened or attempted use, of force.
130 United States v. Lopez-Montanez, 421 F.3d 926, 928 (9th Cir. 2005) (conviction under Cal PC § 243.4(a) is not a
crime of violence under USSG § 2L1.2(b)(1)(A) because it does not have use of force as an element). Section
2L1.2(b)(1) includes the same standard as 18 USC 16(a).
131 Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9 th Cir. 2006) (misdemeanor battery in violation of Calif. PC § 242
is not a crime of violence or a domestic violence offense); Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006)
(misdemeanor battery and spousal battery under Calif. PC §§ 242, 243(e) is not a crime of violence, domestic
violence offense or crime involving moral turpitude. See also cases holding that § 243(e) is not a crime involving
moral turpitude, Singh v. Ashcroft, 386 F.3d 1228 (9 th Cir. 2004). Galeana-Mendoza v. Gonzales, 465 F.3d 1054
(9 th Cir. 2006). The California jury instruction defining “force and violence” for this purpose, CALJIC 16.141
(2005) defines “force” and “violence” as synonymous and states that it can include force that causes no pain and
hurts only feelings; the slightest touching, if done in an insolent, rude or angry manner, is sufficient. See similar
definition at 1-800 CALCRIM 960.
132 Leocal v. Ashcroft, 543 U.S. 1 (2004) (negligence, felony DUI); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th
Cir. 2006)(en banc) (under Leocal, recklessness that injury may occur is insufficient intent to constitute a crime of
violence; that requires being reckless that the crime will result in a violent encounter).
133 Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9 th Cir. 2003) held that all of the behavior covered under California
PC § 422 is a crime of violence.
N-90 Immigrant Legal Resource Center