quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Counsel should assume conservatively that felony battery under P.C. § 243(d) is a crime
of violence, but immigration counsel may have strong arguments that it is divisible for this
purpose, 140 and it is a better plea than § 273.5, for example.
3. Plead to a crime of violence against a victim with whom the defendant does not have a
protected domestic relationship
The immigration statute provides that a deportable crime of domestic violence is a crime
of violence that is committed against a person with whom the defendant shares a certain
domestic relationship. If the victim was a person who does not have that relationship, a “crime
of violence” cannot become a “crime of domestic violence.”
The deportation ground, quoted in full in Part 1, supra, includes a current or former
spouse, co-parent of a child, a person who has cohabitated as a spouse or someone similarly
situated under state domestic or family violence laws, as well as “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.” 141
California family violence statutes protect the following persons (a) a current or former
spouse or cohabitant; 142 (b) a person with whom the other is having or has had a dating or
engagement relationship (defined as a serious courtship); (c) a person with whom the other has
had a child, when the presumption applies that the male parent is the father of the child of the
female parent; 143 (d) a child of a party or a child who is the subject of an action under the
Uniform Parentage Act, when the presumption applies that the male parent is the father of the
child to be protected, or (e) any other person related by consanguinity or affinity within the
second degree.” 144 The word co-habitant means “a person who resides regularly in the
household.” 145 It does not include person who simply sublet different rooms in a common home,
if they are not otherwise part of the same household or do not have some close interpersonal
relationship. 146
In California a plea to a crime of violence against the ex-wife’s new boyfriend or a
neighbor, if they also were involved in the incident, should not be a crime of domestic violence,
because these persons are not covered under state laws.
140 Felony battery does not require intent to cause bodily injury. It can consist of a mere offensive touching, if that
touching goes on to cause bodily injury. See, e.g., People v. Hayes, 142 Cal. App. 4th 175, 180 (Cal. App. 2d Dist.
2006). “The statute (§ 243) makes a felony of the act of battery which results in serious bodily harm to the victim
no matter what means or force was used. This is clear from the plain meaning of the statute.” People v. Hopkins, 78
Cal. App. 3d 316, 320-321 (Cal. App. 2d Dist. 1978). This level of force does not rise to “violence.”
141 8 USC § 1227(a)(2)(E)(i).
142 California Family Code § 6209.
143 California Family Code § 7600 et seq. (Uniform Parentage Act).
144 Matthew Bender, California Family Law § 96.03[02], p. 96-6.
145 Id. at § 96.03[3]; California Family Code § 6209.
146 O’Kane v. Irvine, 47 Cal.App.4 th 207, 212 (1966). Thanks to the Law Office of Norton Tooby for this summary
of California law.
N-92 Immigrant Legal Resource Center