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