Criminal Defense of Immigrants

(C)  Domestic Violence.  In Sutherland v. Reno,[101] the Second Circuit did not discuss the record of conviction limitation, or identify the source of the facts concerning whether the victim was a protected person within the meaning of the domestic violence deportation ground.  In dictum, the Second and Seventh Circuits have suggested that there is no requirement that an offense have a family relationship as an element to satisfy the domestic violence ground of deportability.  See § 16.7(A)(2)(5), supra. [102]  The DHS has indeed attempted — unsuccessfully — to go entirely outside the record of conviction to show that the victim was in fact a spouse to bring a generic conviction — with no element involving the protected relationship — within the domestic violence deportation ground.[103]  See § 22.22, infra.

                To rationalize this violation of categorical analysis, the courts and DHS selectively point to a portion of the definition of a crime of domestic violence, contained in the deportation ground, that states “the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse . . . .”[104]  They argue that the “crime of violence” portion of the definition must be shown by the elements of the offense of conviction, but that the “against a person” language suggests Congress meant to allow proof of the contents of the record of conviction beyond the elements of the offense of conviction to prove the protected relationship.

                This reasoning is mistaken, because it considers a part of the definition of this deportation ground out of context.  The Supreme Court has affirmed the use of the ordinary meaning of the language of a statute defining a ground of removal.[105]  The domestic violence deportation ground requires that the noncitizen must have been “convicted of a crime of domestic violence,”[106] before this ground of deportation is triggered.  This language requires that the conviction itself must be a crime of (a) domestic and (b) violence, since it requires that the respondent be “convicted” of a crime of “domestic violence.”  Therefore, the statute requires that both the domestic element (the specified relationship) and the crime of violence element[107] must be part of the conviction itself.  It is only later in the definition, after Congress has already made it clear that the conviction itself must be for domestic violence, that the language relied upon by the DHS appears.  The correct rule, firmly grounded on the plain meaning of the language of the statute, is that the domestic relationship must be contained in the essential elements of the statute of conviction, as framed by the state legislature or Congress, before a conviction under that statute can constitute a “crime of domestic violence” so as to trigger this ground of deportation.[108]

[101] Sutherland v. Reno, 228 F.3d 171, 176-78 (2d Cir. 2000).

[102] Sutherland v. Reno, 228 F.3d 171, 177-78 (2d Cir. 2000) (holding that a conviction under a general statute with no element involving a domestic relationship 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).

[103] Tokatly v. Ashcroft, 371 F.3d 613, 622-23 (9th Cir. 2004).

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

[105] Leocal v. Ashcroft, 543 U.S. 1, 12, 125 S.Ct. 377, 384 (Nov. 9, 2004).

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

[107] 18 U.S.C. § 16.

[108] Tokatly v. Ashcroft, 371 F.3d 613, 622-23 (9th Cir. 2004).  Thanks to Lory Rosenberg for this argument.