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