Criminal Defense of Immigrants

(G)  Criminal Defense Strategies.  To avoid deportation under this ground, defense counsel should attempt to obtain a disposition that:

                (1) does not constitute a “crime of violence,” such as a plea to offenses such as simple false imprisonment,[8] attempting to persuade someone not to file a police report,[9] misdemeanor criminal property damage or malicious mischief, trespass, and other nonviolent offenses.

                (2) can be committed by a mens rea no greater than recklessness.

                (3) can be committed by merely de minimus touching.[10]

(4) was committed against a victim who does not have one of the listed domestic relationships required by the ground of deportation. In that case, even if the offense is a crime of violence, it will not be a crime of domestic violence.  If some other party who does not have a listed relationship with the defendant (e.g., a new boyfriend) was involved in the event, plead to a crime committed against that person. 

(5) is not shown by the record of conviction to have the attributes listed above.

(6) is merely a crime of violence committed against property as opposed to one committed against a person.

(7) allows an immigration practitioner to obtain relief from deportation in immigration proceedings.  For example, because there is no domestic violence ground of inadmissibility, permanent residents still may be able to adjust status (although if the offense also is a crime involving moral turpitude, immigration counsel must ensure that fact does not disqualify the noncitizen from the necessary relief). 

[8] A misdemeanor violation of California Penal Code § 236 is not a crime of violence under 18 U.S.C. § 16(a), so long as violence, fraud or deceit are not elements.  United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. 2005) (misdemeanor version of California Penal Code § 236 is not a crime of violence under a sentencing guideline standard that is identical to 18 U.S.C. § 16(a)).  Arguably, a felony conviction under this statute also does not constitute a crime of violence if committed by fraud or deceit, instead of by violence or menace.

[9] E.g., California Penal Code § 136.1(b)(2).

[10] See, e.g., misdemeanor California Penal Code § § 242, 243(e)(1); Or. Rev. Stat. § 166.065(1)(a)(A); Haw. Rev. Stat. § 709-906(1); Wyoming Stat. § 6-2-501(b); Arizona Rev. Stat. § 13-1203(a)(3); Wash. Rev. Code § § 9A.36.031(f), 9A.36.041. These offenses will not be considered crimes of violence unless the record of conviction shows that actual violence occurred.