quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
deceit as opposed to fraud or menace. 151 Section § 243(e), spousal battery, is not categorically
(in every case) a CMT because, like other batteries, it can be committed by an offensive
touching. 152 The Ninth Circuit held that P.C. § 273.5 is not categorically a CMT. The statute
requires only a minor injury, and the defendant and victim need have only a tenuous relationship,
such as a former non-exclusive co-habitation. 153 Misdemeanor P.C. § 36, false imprisonment,
appears very unlikely to be found a CMT, because by definition an offense that involves force,
threat, fraud or deceit is a felony. Felony assault under P.C. § 245(a) is divisible as a moral
turpitude offense; it is a general intent crime, with the intent required equal to that of battery, and
incapacitation, mental illness or intoxication is not a defense. 154
B. Finding in Civil or Criminal Court of a Violation of a Domestic Violence Protective Order
Bottom Line Advice: A plea to P.C. § 273.6 for violating a protective order that was issued
pursuant to Calif. Family Code §§ 6320 and 6389 is always a deportable offense. So is a plea to
violating a stay-away order, or any order not to commit an offense that is described in §§ 6320
or 6389. The best option may be to plead to a new offense that will not have immigration
consequences, rather than to violating the protective order. Or, a plea to P.C. § 166(a) with a
vague record of conviction might protect the defendant. See Part 3 for suggested pleas.
A noncitizen is deportable if ICE proves that he or she was found by a civil or criminal
court judge to have violated certain portions of a domestic violence protective order. The
conduct that violated the court order must have occurred after September 30, 1996, and after the
noncitizen was admitted to the United States. The statute describes in detail the type of violation
that must occur:
Any alien who at any time after entry is enjoined under a protection order issued by a court
and whom the court determines has engaged in conduct that violates the portion of a
protection order that involves protection against credible threats of violence, repeated,
harassment, or bodily injury to the person or persons for whom the protection order was
issued is deportable. For purposes of this clause, the term “protection order” means any
injunction issued for the purposes of preventing violent or threatening acts of domestic
violence, including temporary or final orders issued by civil or criminal courts (other than
151 See, e.g., People v. Rios, 177 Cal. App. 3d 445 (Cal. App. 1st Dist. 1986) (felony false imprisonment found when
father picked up baby during visitation, later reported him missing to police, and moved him to Mexico where he
raised the child telling him he was his godfather).
152 Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9 th Cir. 2006); Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006).
153 Morales-Garcia v. Holder, 567 F.3d 1058 (9 th Cir. 2009).
154 Section 245(a) of the California Penal Code is divisible as a crime involving moral turpitude because it is a
general intent crime, Carr v. INS, 86 F.3d 949, 951 (9th Cir. 1996), cited in Navarro-Lopez v. Gonzales, 503 F.3d
1063, 1071 (9 th Cir. 2007) (en banc) (not categorically a crime involving moral turpitude). The requisite intent for
assault with a deadly weapon is the intent to commit a battery. See, e.g., People v. Jones, 123 Cal. App. 3d 83, 95
(Cal. App. 2d Dist. 1981). Section 245(a) even reaches conduct while voluntarily intoxicated or otherwise
incapacitated. See, e.g., People v. Windham (1977) 19 Cal 3d 121; People v. Velez, 175 Cal.App.3d 785, 796, (3d
Dist.1985) (defendant can be guilty of assault even if the defendant was drunk or otherwise disabled and did not
intend to harm the person).
Immigrant Legal Resource Center N-95