quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
4. Plead to a crime of violence that is against property, not persons
While the general definition of crime of violence at 18 USC § 16 includes force used
against people or property, the definition of a “crime of domestic violence” in the domestic
violence deportation ground only includes an offense against “a person.” 147 Thus Immigration
counsel has a very strong argument, although no published case law, that vandalism or other
offenses against property will not support deportability under the domestic violence ground, even
if the offense is a crime of violence.
5. Plead to a crime of violence but keep the domestic relationship out of the official
record of conviction – Changing law?
This section is for defense counsel who may be forced to plead to a crime of violence
where the victim actually has the domestic relationship. It discusses why this is risky, and what
steps may reduce the risk.
The problem. Immigration prosecutors (“ICE”) must prove by “clear and convincing
evidence” that a noncitizen is deportable. 148 In general, ICE must prove that a conviction causes
deportability using the “categorical approach,” in which certain contemporaneous criminal court
documents must conclusively establish that the offense of conviction comes within the
deportation ground. (For more on the categorical approach, see § N.3, supra.)
Regarding a crime of domestic violence, the Ninth Circuit has held that the strict
categorical approach applies both in proving that the offense was a crime of violence and that the
defendant and victim had the required domestic relationship. 149 However, ICE will argue that
two 2009 Supreme Court decisions require that a wider range of evidence can be used to prove
the domestic relationship. 150 Because criminal defense counsel must act conservatively, you
should assume that the government will prevail and the Ninth Circuit will modify its stance.
There is little certainty now as to what kind of evidence would be used if that occurred.
147 INA § 237(a)(2)(E)(i), 8 USC § 1227(a)(2)(E)(i).
148 INA § 240(c)(3)(A), 8 USC § 1229a(c)(3)(A).
149 See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004) (testimony before the immigration judge about the
relationship may not be considered); Cisneros-Perez v. Gonzales, 465 F.3d 385 (9 th Cir. 2006) (information from
various documents, including a stay-away order imposed as a condition of probation for the conviction and a
dropped charge, was not sufficiently conclusive proof of the domestic relationship).
150 In Nijhawan v. Holder, 129 S.Ct. 2294 (2009) the Supreme Court held that some aggravated felony definitions
are bifurcated , in that they contain a “generic offense” which must be proved under the categorical approach, and
“circumstance-specific” facts that may be proved by other evidence. Nijhawan held that in the aggravated felony of
“fraud or theft with a loss to the victim/s exceeding $10,000,” the categorical approach applies to proving the crime
was of fraud or theft, but not to proving the amount of loss. The government may argue that this approach also
applies to the deportable “crime of domestic violence.” In United States v. Hayes, 129 S.Ct. 1079 (2009), the
Supreme Court held that this bifurcated approach does apply to a crime of domestic violence that is worded
similarly to the deportation ground, and held that evidence outside the record can be used to prove the domestic
relationship. Hayes was cited by Nijhawan. For further discussion of Nijhawan v. Holder, see § N.2 The
Categorical Approach and Record of Conviction, and § N.11 Burglary, Theft and Fraud, and see especially Brady,
“Nijhawan v. Holder, Preliminary Defense Analysis” at www.ilrc.org/criminal.php.
Immigrant Legal Resource Center N-93