Safe Havens

(A)  Aggravated Felonies.

An offense involving domestic violence may be considered an aggravated felony crime of violence,[234] or an aggravated felony murder, rape, or sexual abuse of a minor conviction,[235] depending upon the elements of the conviction to which the noncitizen pleads.[236]  Recent cases, however, support narrowed interpretations of “crime of violence” and “abuse” that may be used to argue that some “domestic violence” offenses are not aggravated felonies.  See § 7.153-7.155, supra.

Ninth Circuit:

United States v. Hernandez-Hernandez, 374 F.3d 808 (9th Cir. June 30, 2004) (California misdemeanor conviction of corporal injury on spouse, in violation of Penal Code § 273.5(a), cannot constitute a crime of violence aggravated felony conviction, so as to support a 16-level enhancement of sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because it was a misdemeanor with a maximum possible sentence of one year in county jail).

[234] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[235] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[236] See N. Tooby, Aggravated Felonies § § 5.13-5.15, Crimes of Violence, § 5.36, Murder, § 5.41, Rape, § § 5.45-5.48, Sexual Abuse of a Minor (2003).