Safe Havens

(E)  Relationship with Other Grounds.  Crimes of domestic violence may or may not be considered crimes of moral turpitude.  A domestic violence conviction may not automatically constitute a crime involving moral turpitude.  Simple battery is not a CMT.  Battery on a spouse has been held to be a crime of moral turpitude, because a special relationship of trust exists between offender and victim.  That rationale may not apply to all cases that fall within the wider domestic violence statute, since some domestic violence statutes apply not only to spouses, but also to the “former spouse, cohabitant, former cohabitant, or the mother or father of his or her child . . . .”[1122]  If the immigration court’s rationale for making a non-CMT battery into a crime of moral turpitude may or may not apply under the statutory elements of the offense, it can be considered a divisible statute.  The record of conviction may not establish the exact nature of the relationship sufficient to bring the case within the CMT portion of the statute, and therefore may not establish grounds for removal.

            While domestic battery offenses are often considered CMTs, sometimes the fact necessary to allow the court to consider the offense to be an offense of domestic or family violence is not contained within the record of conviction.

The INS – which is statutorily authorized to administer the immigration laws and determine what constitutes a CMT – has, in the past several years, taken steps to assert that crimes of assault upon victims that have a “special relationship” with the assaulter may be a CMT.  See In re Tran, 21 I. & N. Dec. 291, 292-293 (BIA 1996)(concluding that acts of violence against someone in a special relationship with the assaulter is “different from [assault] between strangers or acquaintances,” and is a CMT); Grageda v. INS, 12 F.3d 919, 922 (9th Cir. 1993)(holding that spousal abuse is a CMT); Toutounjian v. INS, 959 F.Supp. 598, 603 (W.D.N.Y. 1997) (“[S]exual or physical abuse of women or children has been almost uniformly found to involve a crime of moral turpitude.”).[1123]

Medina strenuously contends, however, that this fact is irrelevant since (1) it was not an element of the offense of conviction (as in Tran and Grageda) and (2) his special relationship with the victim was mentioned nowhere in the record of conviction; indeed, Adaway [the INS agent] was aware of Medina’s relationship with his exfiancee only as a result of the newspaper article.  We acknowledge authority in support of Medina’s stance, see, e.g., Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (holding that the “particular family relationship allegedly involved in the crimes” was not relevant since it was not included in the record of conviction), but the INS certainly had the discretion to assert otherwise.  Indeed, there are significant and persuasive legal bases for the INS to take such a position.[1124]

In a jurisdiction which enforces the record of conviction limitation, such as the Ninth Circuit, where the record does not establish the protected relationship, a conviction will not be held to be deportable under this ground or as a crime involving moral turpitude.[1125]

[1122] E.g., California Penal Code § 273.5.

[1123] Medina v. United States, 259 F.3d 220, 228 (4th Cir. 2001).

[1124] Ibid. (footnotes omitted).

[1125] 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 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).