Safe Havens

(B)  Effect of State Law.  This is one of the few areas in which Congress specifically referred to state law as a part of the definition of a ground of deportation.  It is therefore wise to consult with a family lawyer in the jurisdiction in which the case arises, to determine the precise boundaries defining who “is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.”[1151]  A conviction under foreign law is not listed here, and is therefore not included as a ground of deportation.  Congress certainly knew how to include foreign convictions when it wished to do so.[1152]

            For example, in California, family violence statutes protect the following persons: (a) a spouse or former spouse, (b) a cohabitant or former cohabitant,[1153] (c) a person with whom the other is having or has had a dating or engagement relationship, (d) a person with whom the other has had a child, when the presumption applies that the male parent is the father of the child of the female parent,[1154] (e) a child of a party or a child who is the subject of an action under the Uniform Parentage Act, when the presumption applies that the male parent is the father of the child to be protected, or (f) any other person related by consanguinity or affinity within the second degree.[1155]  The term “cohabitant” means “a person who resides regularly in the household.[1156]  The term does not include persons who simply sublet different rooms in a common home, if they are not otherwise part of the same household or do not have some close interpersonal relationship.[1157]

            Sutherland v. Reno[1158] asked whether the victim in the case was “a person who [wa]s protected from [the defendant’s] acts under the domestic or family violence laws of . . . any State.”[1159]  Because Massachusetts law protected all “family or household members”[1160] from violent crimes and other forms of abuse, the court concluded that the defendant’s 19-year-old stepdaughter who was residing with him was a protected person within the meaning of the domestic violence conviction deportation ground.[1161] 

[1151] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[1152] E.g., INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U) (sentence following subparagraph U) (“The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.”)(emphasis supplied).

[1153] California Family Code § 6209.

[1154] See California Family Code § 7600 et seq. (Uniform Parentage Act).

[1155] Matthew Bender, california family law § 96.03[2], p. 96-6.

[1156] Id. at § 96.03[3]; California Family Code § 6209.

[1157] O’Kane v. Irvine, 47 Cal.App.4th 207, 209, 212 (1996).

[1158] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[1159] Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000).

[1160] Mass. Gen. Laws ch. 209A, § 1.

[1161] It is important to note that the court relied on the fact that the defendant “admits that his stepdaughter resided in the household at the time of his offense.”  Ibid.  Therefore, in Sutherland, no question was presented whether the INS could properly go outside the record of conviction to establish that the victim was a family member or a resident of the defendant’s household.