Safe Havens

(C)  Must Conviction Have Domestic Violence As an Element?  Most grounds of deportability are element based.  A noncitizen is deportable for a firearm offense, for example, if s/he is convicted of an offense that has a listed weapon as an element.[1113]  If the domestic violence ground of deportability were element-based, then only offenses in which a family relationship was an element (e.g. domestic assault) would qualify.  The BIA has no published interpretation as to whether the domestic violence ground is element based.  The Second and Seventh Circuits have held that there is no requirement that an offense have a family relationship as an element to satisfy the domestic violence ground of deportability.[1114]  In addition, the Ninth Circuit has held that a sentencing enhancement for a crime of domestic violence pursuant to 8 U.S.C. § 922(g) does not require that the predicate offense include a family relationship as an element to qualify for the enhancement.[1115]   More recently, however, the Ninth Circuit has held that an offense must have domestic violence as an element to trigger deportation under this ground. [1116]

[1113]  Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992).

[1114] Sutherland v. Reno, 228 F.3d 171, 177-78 (2d Cir. 2000) (holding that a conviction under a general offense statute was a deportable offense under domestic violence ground of deportability); Flores v. Ashcroft, 350 F.3d 666, 670-671 (7th Cir. 2003) (determining that injury to domestic partner is federal requirement and may be proved without regard to elements of state crime).

[1115]  United States v. Belless, 338 F.3d 1063 (9th Cir. 2003).

[1116] Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Oregon convictions of First Degree Burglary and Attempted First Degree Kidnapping, in violation of Or. Rev. Stat. § § 163.225, 163.235, found not to be “crimes of domestic violence,” under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for deportation purposes, since there was no evidence in the record of conviction that victim was protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent).