Safe Havens

(F)  Limitation to the Record of Conviction.  The government in domestic violence cases attempts to use a wide range of evidence to establish the relationship between the defendant and the victim, including police reports, marriage records, evidence of enhancements for domestic violence, and even testimonial evidence to establish that a “protected person” was the victim of the offense.  The Seventh Circuit affirmed the BIA where the respondent admitted in proceedings that the victim was his wife.[1126]  In analyzing the issue, the Seventh Circuit stated:

Although § 16(a) directs attention to the statutory elements, § 237(a)(2)(E) of the immigration laws departs from that model by making the “domestic” ingredient a real-offense characteristic. Thus it does not matter for purposes of federal law that the crime of battery in Indiana is the same whether the victim is one’s wife or a drinking buddy injured in a barroom. The injury to a “domestic partner” is a requirement based entirely on federal law and may be proved without regard to the elements of the state crime. See Sutherland v. Reno, 228 F.3d 171, 177-78 (2d Cir. 2000). Substantial evidence, independent of Flores’s admission, shows that the victim was his wife. When classifying the state offense of battery for purposes of § 16(a), however, the inquiry begins and ends with the elements of the crime.[1127]

The Second Circuit affirmed an order where the source of the evidence as to the relationship was not specified.[1128]  Witness testimony, police reports, and other evidence outside of the record of conviction cannot support any other criminal-based ground of deportability.[1129] 

            The BIA has no published interpretation regarding what evidence is probative of the relationship.  Outside the Second and Seventh Circuits, there is no controlling authority that would allow evidence outside the record of conviction.  In a closely related context, the Ninth Circuit held that it would not go outside the record of conviction to determine the loss to the victim in an aggravated felony fraud charge where the government was required to prove the loss exceeded $10,000 to sustain the charge.  Arguably, the BIA should have to explain why domestic violence deportability is not subject to the same rule as the other criminal grounds of deportability.[1130]

[1126] Flores v Ashcroft, 350 F.3d 666 (7th Cir. 2003). 

[1127] Flores v Ashcroft, 350 F.3d 666, 670  (7th Cir. 2003). 

[1128] Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000).

[1129] See, e.g., Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996) (holding that police reports not part of record of conviction in deciding firearm deportability); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (holding that testimony not part of record of conviction for determining firearm deportability); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (same for moral turpitude deportability).  

[1130] See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991) (allowing agency to change its interpretation, but only if it provided a reasoned explanation).