Immigration consequences of domestic violence convictions

A CRIMINAL conviction for domestic violence might affect an alien’s eligibility for immigration relief or benefit. This conviction might qualify as a ground for inadmissibility under crime involving moral turpitude (CIMT). It might also qualify as a ground for deportability under aggravated felony or domestic violence. Grounds for inadmissibility disqualify an alien who is trying to enter the US from getting a visa or admission. Grounds for deportability make an alien who has already been admitted into the US susceptible to removal.

There are two common domestic violence offenses in California. First, California Penal Code (PC) Section 243(e)(1) punishes battery committed against a spouse, cohabitant, the parent of defendant’s child, former spouse, fiancé(e), or a person with whom the defendant had a relationship. PC 242 defines battery as any willful and unlawful use of force or violence upon the person of another.

Second, PC 273.5(a) punishes the willful infliction of corporal injury on the same persons described under PC 243(e)(1) which result in a traumatic condition. PC 273.5(d) defines traumatic condition as a wound or injury caused by physical force.

Let’s first examine PC 243(e)(1). In Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006), the Board of Immigration Appeals (BIA) held that a PC 243(e)(1) conviction is not categorically a CIMT. A CIMT is one that involves either: (1) fraud; or (2) base, vile, and depraved conduct that shocks the public conscience. In Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010), the Ninth Circuit Court of Appeals observed that non-fraudulent CIMTs involve: (1) an intention to harm someone; (2) the actual infliction of harm on someone; or (3) an action that affects a protected class of victim.

Matter of Sanudo held that a PC 243(e)(1) conviction is not a CIMT because the minimal conduct for this conviction is the intentional touching of another without consent. One may be convicted under PC 243(e)(1) without using violence and without injuring or intending to injure the victim.  In Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006), the Ninth Circuit agreed with the BIA and found that a PC 243(e)(1) conviction is not a CIMT because it does not require an injury and includes no other inherent element that shows depravity.

The BIA also found in Matter of Sanudo, that a PC 243(e)(1) conviction is not a crime of violence. Under INA 237(a)(2)(E)(i), an alien who at any time after entry is convicted of a crime of domestic violence is deportable. This provision defines domestic violence as a crime of violence against a spouse or a cohabitant, among others.

Under 18 USC Section 16, a crime of violence is: (1) an offense that has as an element the use, attempted use, or threatened use of physical force against a person or property; or (2) any other felony that, by its nature, involves substantial risk that physical force might be used against a person or property in the course of committing the offense.

In Matter of Sanudo, the alien’s conviction record did not show he pleaded guilty to conduct covered under 18 USC Section 16. However, in Habibi v. Holder, 673 F.3d 1082 (9th Cir. 2011), the Ninth Circuit found that petitioner’s PC 243(e)(1) conviction was a crime of violence because he conceded so. The Court also found that this PC 243(e)(1) conviction was an aggravated felony because, under INA 101(a)(43)(F), a crime of violence for which the prison term is at least one year is an aggravated felony and petitioner did serve a prison term of one year.

Let’s now go to PC 273.5. In Matter of Tran, 21 I&N Dec. 291 (BIA 1996), the BIA held that the infliction of bodily harm on a person with whom one has a family relationship is an act of depravity. Thus, a PC 273.5 conviction is a CIMT.

In Grageda v. INS, 12 F.3d 919 (9th Cir. 1993), the Ninth Circuit held that a PC 273.5 conviction for infliction of corporal injury on a spouse is a CIMT because it is morally objectionable to beat a person who is committed to a relationship of trust and who may be dependent upon the offender. However, in Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009), the Ninth Circuit clarified that a PC 273.5 conviction for infliction of corporal injury on a cohabitant might not necessarily be a CIMT because some relationships covered under PC 273.5 embody a lesser level of commitment and dependency than marriage.

Lastly, the Ninth Circuit found in Banuelos-Ayon v. Holder, 611 F.3d 1080 (9th Cir. 2010) that a PC 273.5 conviction is a crime of violence because it requires the intentional use of force against a person.

Domestic quarrels might be unavoidable but violence during these arguments should not be inevitable because the consequences are serious and irreversible for aliens. When tempers cool down couples might easily forgive each other but they’ll never forget their legal troubles because remorse or retraction would not necessarily save the alien spouse from prosecution and removal.

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Charles Medina practices immigration law. Visit his website at www.medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.