quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding. 155 1. Conviction under P.C. § 273.6 for violating a protective order that was issued pursuant to Calif. Family Code §§ 6320 and 6389 always triggers this deportation ground. A conviction under Calif. Penal Code § 273.6 for violating a protective order issued “pursuant to” Calif. Family Code §§ 6320 and 6389 automatically causes deportability as a violation of a protection order. In Alanis-Alvarado v. Holder 156 the court found that the focus of the deportation ground is the purpose of the order violated, not the individual’s conduct. The court found that all activity described in §§ 6320 and 6389 has as its purpose “protection against credible threats of violence, repeated harassment, or bodily injury” of the named persons. Thus a conviction under this section will cause deportability even if the conduct that constituted the violation of the order did not actually threaten “violence, repeated harassment or bodily injury”-- for example a single non-threatening phone call. 157 The Court held that the categorical approach applies in this context. However, for procedural reasons, the majority of the panel declined to consider Petitioner’s argument that the record only established that he pled guilty to Calif. P.C. § 273.6, and not to P.C. § 273.6 “pursuant to” Calif. Family Code §§ 6320 and 6389. A record that does not establish this might avoid deportability. See next section. 2. Avoid a judicial finding of violating a stay-away order, or any order not to commit an offense that is described in Calif. Family C §§ 6320 or 6389. Another Ninth Circuit panel held that violation of a portion of any order prohibiting the conduct that is described in Calif. Family C. §§ 6320 and 6389 is a basis for deportation. Szalai v. Holder, 572 F.3d 975 (9 th Cir. 2009). In Szalai the Court considered a finding by an Oregon court that the defendant had violated a 100 yard stay-away order (walking a child up the driveway instead of dropping him off at the curb, after visitation). The court held that the case was controlled by Alanis-Alvarado, supra. Alanis-Alvarado had found that "every portion" of a protective order issued under Calif. Family C. § 6320 "involves protection against credible threats of violence, repeated harassment, or bodily injury." Because § 6320 includes stay-away orders, the Szalai court concluded that a violation of the Oregon stay-away order also is a deportable offense. Section 6320(a) covers a wide range of behavior. It permits a judge in a domestic violence situation to enjoin a party from “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying 155 INA § 237(a)(2)(E)(ii), 8 USC §1227(a)(2)(E)(ii). 156 Alanis-Alvarado v. Holder, 558 F.3d 833, 835 (9th Cir. 2009), amending, with the same result, 541 F.3d 966 (9 th Cir. 2008). A petition for rehearing and rehearing en banc was denied with the amended opinion. 157 Id. at 839-40. N-96 Immigrant Legal Resource Center
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