Mini Chart: Domestic Violence - ILRC

Immigrant Legal Resource Center, www.ilrc.orgJanuary 2013§ N.9 Domestic Violence, Child AbuseOFFENSE AGGRAVATED FELONY (AF) MORAL TURPITUDE(CIMT)DEPORTATION GROUNDP.C. §240(a)Assault, simpleSummary: With carefulplea shd have noimmigration effect; seealso batteryNot a COV if offensivetouching, and not AF COVbecause has a six‐monthmaximum.Plea to 243 may be preferablejust because there is clear,recent imm case law.Altho simple assaultnever shd be held aCIMT, 19 plead toassault by attemptedoffensive touching.Plea to 243 may bepreferable because ofclear, recent imm caselaw.If offense is held a COV andvictim has a domesticrelationship, deportable DVoffense.To avoid possible deportablecrime of child abuse, do notlet ROC show V under age 18P.C. §243(a)Battery, SimpleSummary: With carefulplea, may have noimmigration effectNot an AF as COV because no1‐year sentence.Not COV if de minimus force(offensive touching) ratherthan actual violence involved.See 243(e).Simple battery withno relationship oftrust shd never be aCIMT, but a judgemight hold it isdivisible like 243(e).See 243(e) comments.If offense is held a COV andvictim has a domesticrelationship, deportable DVoffense.To avoid possible deportablecrime of child abuse, do notlet ROC show V under age 18P.C. §243(d)Battery with seriousbodily injurySummary: With carefulplea, can avoid AF anddeportable DV offense;might avoid even aCIMT.To avoid AF as COV, get 364days or less for any singlecount .If sentence of 1 yr or more isimposed, to avoid AF as COV:‐Plead to de minimus force(offensive touching ) whichshd prevent felony, and willprevent misdemeanor, frombeing COV. 20 Misdo includeswobbler reduced to misdo.De minimus force shdnot be held a CIMT, 21but actual violence is aCIMT.To avoid a CIMT pleadspecifically to deminimus force; if not,immigration judgemay inquire intounderlying facts forCIMT purposes onlyunder Silva‐Trevino.If offense is held a COV andvictim has a domesticrelationship, deportable DVoffense.To avoid a deportable crimeof child abuse, don’t let ROCshow V was under age 18.P.C. §243(e)(1)Battery againstspouse, date, etc.Summary: Excellentimm plea as long as theplea is to “offensivetouching”; this avoidsany immigration effectTo avoid possible AF as aCOV, get 364 days or less forany single count.Even if 1 yr imposed, 243(e)is not a COV if ROC showsoffense involved de minimusforce (offensive touching)rather than actual violence. 22A vague ROC will protect anLPR who is not otherwisedeportable, and no one else. 23Make specific plea tooffensive touching toavoid a CIMT. 24 Ifinstead ROC is vague,under Silva‐Trevinothe imm judge mayinquire intounderlying facts.A deportable DV offense onlyif this is a COV. If ROC showsoffensive touching, or isentirely vague on the point, itwill not cause an LPR who isnot otherwise deportable tobecome deportable, and theperson can accept DVcounseling, stay away order,etc. without it becoming one.But a vague record will be abar to non‐LPR cancellation.To avoid possible deportablecrime of child abuse, do notlet ROC show V under age 18183

Immigrant Legal Resource Center, www.ilrc.orgJanuary 2013§ N.9 Domestic Violence, Child AbuseOFFENSEAGGRAVATED FELONY (AF)Crime of Violence (COV)Sex Abuse of a Minor (SAM)MORAL TURPITUDE(CIMT)DEPORTATION GROUNDP.C. §243.4Sexual batterySummary: Can use toavoid an AF such asrape or sexual abuse ofa minor. Might avoiddeportable DV or childabuse offense.To avoid AF as COV: Get 364days or less on any count.If 1 yr or more imposed:‐Felony is AF as COV but‐Misd is divisible as COV. 25For misd let ROC showrestraint not by use of force.To avoid AF as Sexual Abuseof a Minor or Rape‐To avoid rape, ROC must notshow penetration.‐To avoid sexual abuse of aminor, ROC must not show Vunder 18.‐ Note 364‐day sentence doesnot protect here. Sexual abuseof a minor and rape are AFsregardless of sentence.Yes CIMTA COV is deportable DVoffense if committed againstDV type victim, whichincludes a dating relationship.Felony is COV whilemisdemeanor is divisible (seeAgg Felony column)To avoid deportable crime ofchild abuse (and AF sexualabuse of a minor), don’t letROC show V was under 18.P.C. §245(a)(effective 1/1/2012)Assault with a deadlyweapon or with forcelikely to producegreat bodily harmSummary: With carefulplea can avoid AggFelony or deportable DVoffense. Probably will bea CIMT.This is a COV. To avoid an AF,get 364 days or less on anysingle count245(a)(3) is an AF as afederal firearms analogue,even with a sentence of lessthan one yearConservativelyassume yes CIMT,despite case law to thecontrary. To try toavoid CIMT for (1),(2), (4), have the ROCshow intoxicated orincapacitated conductwith no intent toharm. 26A COV is deportable crime ofDV if committed against DVtype victim, and crime of childabuse if ROC shows victimunder 18. Keep ROC clear.To avoid deportable firearmsoffense, 27 keep ROC ofconviction clear of evidencethat offense was 245(a)(2) or(3); consider PC 17500, 236,243(d) and 136.1(b)(1) andsee Note: Firearms.P.C. §261RapeSummary: Automaticaggravated felony, CIMTYes AF as rape, regardless ofsentence imposed. Includes ifV is incapacitated and othercontexts not including force.Consider PC 243(d), 243.4,236, 136.1(b)(1)Yes CIMTA deportable crime of DV ifcommitted against DV typevictim, e.g. dateTo avoid deportable crime ofchild abuse, don’t let ROCshow V was under 18.P.C. §262Spousal RapeSummary: Automaticaggravated felony, CIMTYes AF, regardless of sentenceimposed. See § 261suggestionsYes CIMTDeportable crime of DV.Deportable crime of childabuse if ROC shows V under18 year184

Immigrant Legal Resource Center, www.ilrc.orgJanuary 2013§ N.9 Domestic Violence, Child AbuseOFFENSE AGGRAVATED FELONY (AF) MORAL TURPITUDE(CIMT)DEPORTATION GROUNDP.C. §273.6Violation ofprotective orderSummary: Bad plea:Civil or criminal findingis a deportable DVoffense. See last columnfor suggested pleas.Get 364 days or less for anysingle count to be sure ofavoiding AF as COV.If 1 yr sentence imposed, donot let ROC show violationwas by threat or use ofviolent force; in that case shdnot be an AF as COV.Unclear. Might beCIMT based on whatconduct was; pleadspecifically to nonviolent,minorconduct. With vagueplea, imm judge maydo factual inquiry, forCIMT purposes only.§ 273.6 "pursuant to" Cal.Family Code §§ 6320 and6389 is automaticallydeportable as a violation of aDV protection order. Considerplea to 166(a) with a vagueROC, or to a new offense thatis not deportable; see 243(e),591, 653mP.C. §281BigamyNot AF Yes CIMT NoP.C. §403Disturbing publicassemblyNot AFNot CIMT, but keepROC clearNo. As always, keep the ROCclear of violent threats orconduct.P.C. §415Disturbing the peaceNot AFProbably not CIMT,but keep ROC clear ofonerous conductNo. As always, keep the ROCclear of violent threats orconductP.C. §422Criminal threatsSummary: Can avoid anAF with 364 daysentence; might avoiddeportable DV if DVtypevictim not ID’dYes AF as COV if 1‐yrsentence imposed. 30 Obtain364 days or less on any singlecount.With 1 yr see PC 243(e), 236,240, maybe 136.1(b)(1)Yes CIMTAs a COV, it is a deportablecrime of DV if ROC showscommitted against DV typevictim.To avoid deportable crime ofchild abuse, don’t let ROCshow V was under 18.P.C. § 591Tampering withphone, TV linesSummary: Good plea;no immigration effectexcept possible CIMTNot a COV.Should not be CIMT,but no guarantees. Tobe safe, ID innocuousbehavior on ROC.Not deportable DV offenseb/c not COV, but to be safekeep ROC clear of anyviolence or threats of force.P.C. § 591.5Tampering w/ phoneto prevent contact w/law enforcementSummary: Noimmigration effectexcept may be CIMTNo because 6 month possiblemaximum.Conservativelyassume it is a CIMT,but might not be.Not deportable DV offenseb/c no element of intent tothreaten or use violent force –but keep ROC clear of anyviolence or threats of force.To avoid possible deportablecrime of child abuse, do notlet ROC show V under age 18186

Immigrant Legal Resource Center, www.ilrc.orgJanuary 2013§ N.9 Domestic Violence, Child Abuse7 A noncitizen is deportable for conviction of a crime of child abuse, neglect, or abandonment, if the convictionoccurred on or after September 30, 1996. 8 USC § 1227(a)(2)(E)(i). A conviction under an age-neutral statute isnot a crime of child abuse as long as the record of conviction does not establish that the victim was under age 18.See § N.9 Domestic Violence and Child Abuse at www.ilrc.org/crimes.8 Under the Adam Walsh Act a conviction for certain offenses against a victim under the age of 18 will prevent apermanent resident or even a U.S. citizen from petitioning to get a green card for close family members in the future.The offenses include assault and false imprisonment. See § N.13 Adam Walsh Act at www.ilrc.org/crimes.9 Temporary Protected Status (TPS) is given to nationals of certain countries that have suffered recent naturaldisaster or civil unrest, for example post-earthquake Haiti, if the nationals were in the U.S. and registered for TPS asof certain dates. For more information on current TPS, see www.uscis.gov under “Humanitarian.”10 Deferred Action for Childhood Arrivals (“DACA”) provides in this case employment authorization and at leasttwo years protection from removal, for certain persons who came to the U.S. while under 16 years of age and for atleast five years before June 15, 2012 resided in the U.S., and who were not over age 30 as of that date. Crimesprovisions are very strict. Conviction of one felony (potential sentence of more than one year); of threemisdemeanors of any type; or of one “significant misdemeanor” is a bar to DACA. DHS states that a “significantmisdemeanor” is a federal, state, or local criminal offense punishable by imprisonment of one year or less, but morethan five days and is an offense of domestic violence, sexual abuse or exploitation, unlawful possession or use of afirearm, drug sales, burglary, driving under the influence of drugs or alcohol, or any other misdemeanor for whichthe jail sentence was more than 90 days. For more information go to www.ilrc.org, or www.uscis.gov under“Humanitarian” (see FAQ’s).11 The Board of Immigration Appeals (BIA) held that P.C. § 32 is automatically obstruction of justice. Matter ofValenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012). Avoid 1year sentence imposed on any single count.12Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). The Ninth Circuit had held that § 32 is never a CIMT, but unlessand until it declines to apply the BIA’s rule, counsel must assume § 32 is a CIMT if the underlying offense is.13 P.C. § 32 does not take on the character of the underlying offense, other than for CIMT purposes. See, e.g.,United States v. Innie, 7 F.3d 840 (9th Cir. 1993) (accessory after the fact to a crime of violence is not a crime ofviolence); Matter of Batista-Hernandez, supra (accessory after the fact to a drug offense is not a drug offense).14 See Flores-Lopez v. Holder, 685 F.3d 857 (9 th Cir. 2012) (P.C. § 69 is divisible as a crime of violence because itsdefinition of “force and violence” is the same as simple battery, in that it includes de minimus force). A sentence of365 and a plea to “offensive touching” should not be an aggravated felony in any context. The same sentence and avague record can prevent a lawful permanent resident who is not deportable under any other ground from becomingdeportable based on the aggravated felony ground, but will not prevent the offense from being an aggravated felonyfor purposes of bars to status or discretionary relief. See § N.3 Record of Conviction on effect of vague record.15 As discussed at note 11, above, the BIA has held that accessory after the fact under P.C. § 32 is obstruction ofjustice, including where the defendant obstructed just the principal’s arrest. Based upon this, ICE might charge that§ 136.1(b)(1) also is obstruction of justice and thus an aggravated felony if a sentence of a year or more is imposed.However, § 32 was held obstruction of justice because it requires specific intent to prevent the criminal fromundergoing arrest, trial or punishment. Section 136.1(b)(1) lacks this intent. It simply prohibits nonviolently andwithout pecuniary gain attempting to persuade a victim of or witness to a crime not to file a police report. With itslack of specific intent, § 136.1(b)(1) is more akin to misprision of felony (concealing a felony), which has been heldnot to be obstruction of justice; see discussion in Hoang v. Holder, 641 F.3d 1157 (9 th Cir. 2011). Under §136.1(b)(1) the defendant may wish for the criminal to be apprehended but still attempt to persuade a victim orwitness not to file charges, for example to save the person from feared consequences of filing (e.g., reprisals by gangmembers, eviction if certain facts come out, emotional strain on an unhealthy person). The defendant may knowthat multiple reports in the matter already were filed, or think the witness may do the case more harm than good.Thus, while by far the best course is to get no more than 364 days on any single count (see Note: Sentences atwww.ilrc.org/crimes.com), if that is not possible try to fashion a specific plea consistent with the above.16 If the record shows an intent to protect or assist the witness rather than to help the criminal escape, this mightavoid classification as a CIMT. See above note for fact examples.17 See note 6, discussing the deportation ground based on violation of DV-protective order.18 Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. 2010).189

Immigrant Legal Resource Center, www.ilrc.orgJanuary 2013§ N.9 Domestic Violence, Child Abuse19 See, e.g., Matter of B-, 5 I&N 538 (BIA 1953) (simple assault is not a CIMT); Matter of Danesh, 19 I&N Dec.669 (BIA 1988) (assault is CIMT only with aggravating factors, such as serious assault against a police office).20 Like simple battery, § 243(d) can be committed with de minimus force, with no intent to cause injury orlikelihood of doing so; §§ 243(a) and (d) differ only in the result. See People v. Hopkins, 78 Cal. App. 3d 316, 320-321 (Cal. App. 2d Dist. 1978). A crime of violence involves purposeful, aggressive, violent conduct. Felony isriskier because gov’t could assert that this force, while not itself violent, is likely to lead to violent fight;immigration counsel should fight that. A wobbler that is designated or reduced to a misdemeanor is a misdemeanorwith a potential sentence of one year for immigration purposes. LaFarga v. INS, 170 F.3d 1213 (9th Cir 1999).21 Matter of Muceros, A42 998 610 (BIA 2000) Indexed Decision, www.usdoj.gov/eoir/vll/intdec/indexnet.html(P.C. § 243(d) is not a CIMT if committed with offensive touching); Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010)(similar Canadian statute).22 See, e.g., Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9 th Cir. 2006) (Calif. P.C. § 242 is not a crime of violence ifit involves offensive touching); Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (same for § 243(e)).23 A vague ROC will prevent the offense from causing a noncitizen to be deportable (except under the CIMTgrounds). Under a recent decision, it will not prevent the conviction from being a bar to eligibility for relief fromremoval or status. Young v. Holder, 697 F.3d 976 (9 th Cir. 2012) (en banc) and Advisory at www.ilrc.org/crimes.24 Matter of Sanudo, supra (§ 243(e) is not a CIMT if it involves offensive touching).25 Compare U.S. v. Lopez-Montanez, 421 F.3d 926, 928 (9th Cir. 2005) (misdemeanor PC §243.4 is not categoricallya crime of violence under 18 USC §16(a) standard since the restraint can be effected without force) with Lisbey v.Gonzales, 420 F.3d 930, 933 (9th Cir. 2005)(felony Calif. PC §243.4(a) is a crime of violence under 18 USC §16(b)standard because it contains the inherent risk that force will be used).26 See Carr v. INS, 86 F.3d 949, 951 (9th Cir. 1996) cited in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9thCir. 2007) (en banc) (§ 245(a) is not categorically a CIMT). P.C. § 245(a) is a general intent crime that requires nointent to harm and reaches conduct while intoxicated or incapacitated. See, e.g., People v. Rocha, 3 Cal.3d 893,896-99 (Cal. 1971). The BIA is likely to rule against this, however. Note that §245(a) is a crime of violence.27 A noncitizen is deportable if convicted of almost any offense relating to a firearm. 8 USC §1227(a)(2)(C).28 Calif. P.C. § 273d has same elements re violence as § 273.5, which has been held an automatic crime of violence.29 Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) (§ 273.5 is not automatic CIMT because relationshipcan be attenuated and the touching only battery). But § 273.5 is a crime of violence and deportable DV offense.30 Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. 2003).31 See next footnote regarding misdemeanor vandalism.32 Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995) (Wash. statute not CIMT where damage is less than $250,committed with intent to annoy) and US v Landeros-Gonzales, 262 F.3d 424 (5th Cir 2001) (graffiti not a CIMT).33 Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007).34 Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012), declining to follow Malta-Espinoza outside Ninth Circuit.35 Although this is a general intent offense that is completed by peeking (In re Joshua M., 91 Cal. App. 4th 743 (Cal.App. 4th Dist. 2001)), under Silva-Trevino an immigration judge might make factual inquiry for CIMT purposes tosee if lewd intent actually was involved.190