quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 Advice. Again, by far the better strategy is to avoid pleading to a crime of violence at all, or to plead to a crime of violence against a victim with whom the defendant does not have a domestic relationship, or to a crime of violence against property. If that is not possible, where the charge of a violent crime alleged the name of a victim with a domestic relationship, where possible plead to a slightly different offense in a newly crafted count naming Jane or John Doe. (ICE sometimes makes the distinction between a plea to a new offense and a recrafted plea.) Even under the possible expanded evidentiary rules, information from dropped charges may not be considered. Also, keep the name and relationship outside of any sentencing requirements. If needed, plead to an unrelated offense, if possible against another victim (e.g. trespass against the next door neighbor, disturbing the peace) and take a stay-away order on that offense. Under California law a stay-away order does not need to relate to the named victim. See extensive discussion in Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. 2006), and see also Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004). 6. Other Consequences: Domestic Violence Offenses as Crimes Involving Moral Turpitude, Aggravated Felonies Aggravated felony. An offense that is a “crime of domestic violence” also is a “crime of violence.” A conviction of a crime of violence for which a sentence of a year has been imposed is an aggravated felony, under 8 USC § 1101(a)(43)(G). To avoid the aggravated felony consequence, counsel must obtain a sentence of 364 days or less for any single count of a crime of violence. Conviction of an offense that constitutes rape or sexual abuse of a minor is an aggravated felony regardless of sentence. See 8 USC § 1101(a)(43)(A) and § N.10 Sex Offenses, infra. Crime involving moral turpitude. Offenses that involve intent to cause significant injury, or many offenses with lewd intent, will be held to be a crime involving moral turpitude (CMT). Sexual battery under P.C. § 243.4, whether misdemeanor or felony, is a CMT. Under Matter of Silva-Trevino, if a statute is divisible and the record of conviction does not specifically indicate that the conviction was for conduct that does not involve moral turpitude, the immigration judge may decide to look beyond the record in order to determine whether the offense is a CMT. In a divisible statute that contains non-CMT’s and CMT’s, therefore, counsel’s goal is to plead specifically to the non-CMT offense. Felony false imprisonment under P.C. § 236 is committed by force, threat, fraud or deceit. While counsel must assume conservatively that this involves moral turpitude, it is possible that this is not a categorical crime involving moral turpitude if the offense is based on N-94 Immigrant Legal Resource Center
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