quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” Section 6320(b) permits a judge in a domestic violence situation to enjoin a party from taking certain actions against the victim’s pet. Section 6389 permits injunction of possession and use of a firearm. a. Suggested Pleas Criminal defense counsel must make every effort to avoid a judicial finding that a defendant violated a portion of a domestic violence order involving conduct described in Calif. Family C. §§ 6320 and 6389, including minor violations involving stay-away orders or phone calls. Suggestions include: ‣ Plead to a new offense, rather than to a violation of a protective order. In doing so, make sure (a) that the plea is not to a “crime of domestic violence” or other deportable offense and (b) that the judge does not make a finding in the proceeding that the protective order was violated. o For example, a plea to spousal battery under P.C. § 243(e) is not a crime of domestic violence if the record of conviction does not indicate that actual violence was used. A plea to trespass rather than violation of a stay-away order should not cause deportability as a violation of a protective order, or as a conviction of a crime of domestic violence. (However, because of uncertainty of how the law will be interpreted, it would be best to plead to conduct that is not itself a violation of the court order, where that is possible.) These pleas can have as conditions of probation additional protective order provisions, requirements to go to anger management classes, etc. See Part A, supra, regarding safe pleas to avoid conviction of a crime of domestic violence. ‣ Plead to P.C. § 166(a) (contempt of court), and keep the record vague. Among other actions, this offense includes violating any order made by the court. ‣ A violation of a domestic violence protective order that relates to custody, support payment, anger management class attendance, and similar matters does not come within this ground. ‣ Far more risky, attempt to plead to P.C. 273.6 but not for violating a protective order issued “pursuant to” Calif. Family Code §§ 6320 and 6389. o If counsel must plead to P.C. § 273.6 pursuant to Family C. §§ 6320 and 6389, counsel should take a West plea to, e.g., “Count 2,” but refuse to plead specifically “as charged in” Count 2. This will give immigration counsel an argument that the record does not Immigrant Legal Resource Center N-97
California Quick Reference Chart and Notes February 2010 establish that the plea was pursuant to these Family Code sections. 158 The dissenting judge in Alanis-Alvarado was open to considering these arguments. Counsel can try pleading to P.C. § 273.6 pursuant to other provisions in the section (elder abuse, employee abuse, protective orders not specifically tied to domestic violence), or if permitted, simply to P.C. § 273.6. A danger with this approach is that there is no case law defining which evidence ICE might be permitted to use to show that the offense in fact constituted a violation of a domestic violence protective order. The Court in Alanis-Alvarado stated that the categorical approach applies to this question, but this might be re-thought if the categorical approach is found not to apply to a deportable crime of domestic violence, as discussed in Part A, supra. Almost all of the possible means of violating these court orders relate to protection against violence and harassment. (However, a violation of these orders is not in itself a categorical crime of violence, so that the offense should not automatically be held a deportable crime of domestic violence. 159 ). There is also the danger that the offense could be held to constitute stalking, a separate basis for deportability. See Part D. C. Crime of Child Abuse, Neglect or Abandonment Warning for U.S. citizen or permanent resident defendants: A U.S. citizen or permanent resident who is convicted of sexual conduct or solicitation, kidnapping, or false imprisonment where the victim is under the age of 18 faces a serious penalty: he or she may be barred from filing a family visa petition to get lawful immigration status for a close relative in the future. See further discussion of the Adam Walsh Act at Note 11, infra. 1. The Board of Immigration Appeals’ Definition of a Crime of Child Abuse or Neglect A noncitizen is deportable if, after admission and after September 30, 1996, he or she is convicted of a “crime of child abuse, child neglect, or child abandonment.” 160 158 Why is “as charged in” important? As discussed in § N. 3, supra, in United States v. Vidal, 504 F.3d 1072, 1087 (9 th Cir. 2007)(en banc) the court held that because a California criminal charge can be amended orally up until the plea is taken, a plea to, e.g., “Count I -- V.C. § 10851” is not an admission of the facts alleged in that Count unless the plea contains the critical phrase “as charged in” Count I. Instead, it is only a plea to § 10851 in general. Why is it important to take a West plea? After Vidal was published, another en banc opinion appeared to contradict the holding, without explanation. Vidal concerned a West plea, and while this did not appear to be a basis for the “as charged in” rule, some immigration judges are holding that Vidal only applies to West pleas. Therefore a West plea, although perhaps legally unnecessary, is helpful in immigration court. 159 See, e.g., discussion in Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9 th Cir. 2007), holding that harassing or following, with threats, under Calif. PC § 646.9(b) is not a categorical “crime of violence” because the full range of conduct covered by the harassment portion of the statute includes crimes that can be committed at a distance by telephone or mail and where there is no substantial risk of violence. 160 INA § 237(a)(2)(E)(i), 8 USC § 1227(a)(2)(E)(i). N-98 Immigrant Legal Resource Center
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