Aside from attempting to eliminate some part of the necessary definition of a deportable domestic violence conviction from the record of conviction, there are several techniques that may be useful.  See also § 22.2(F), supra.

 

                (1)  Counsel defending a noncitizen against a domestic-violence charge should seek a plea to an offense that does not identify the victim or otherwise bring the offense within the definition of domestic-violence offenses.  Counsel should also attempt to avoid any reference in the record of conviction (charging paper, plea, judgment, transcripts) to the existence of a listed relationship between the defendant and the complaining witness.  For example, where misdemeanor false imprisonment[11] does not involve force or violence as an essential element, it would not be considered a “crime of violence” under 18 U.S.C. § 16(a), nor under § 16(b), since it is a misdemeanor conviction, not a felony as is required by § 16(b).  Since the offense does not involve force or violence, it may not be considered a crime involving moral turpitude.  This would depend on the exact elements of the statute defining the offense in the particular jurisdiction.

 

                (2)  In case the immigration authorities are allowed to go outside the record of conviction to prove the victim was in fact a protected person, defense counsel should seek a disposition that does not involve a listed victim.  For example, where the defendant is accused of assaulting his ex-wife and her new boyfriend, it would be wiser to enter a plea to assault on the new boyfriend.  The new boyfriend is not a person who appears on the list of victims specified in the deportation ground.  The same would hold for a neighbor, or the ex-wife’s uncle, or friend.

 

                (3)  The Department of Justice disburses grant money to local prosecutors’ offices, which may be conditioned upon conviction rates, thus placing a financial incentive on prosecutors to secure convictions of certain listed offenses.  Because prosecutors have a duty of fairness to the accused,[12] and placing a financial incentive in favor of conviction upon a judge violates the right to an impartial judge,[13] the defendant’s right to an impartial prosecutor may be violated by this practice.  It may be possible through discovery to document the bribery of the prosecutor’s office that is being perpetrated by the government, that biases it against the defendant in these cases, forcing it to seek a conviction for financial reasons even though it may be against the interests of justice in the individual case.  Thus, it may be possible to force more flexibility in plea bargaining domestic violence cases.

 

                (4)  It is common for the “victim” to oppose deportation, either on grounds of family reunification, the necessity to preserve a relationship between the offender and his or her children, the desirability of avoiding deportation in order to ensure the payment of child and spousal support, or simply because of human compassion for everyone involved.  Some prosecutors have begun to realize that by insisting on a disposition that triggers deportation, they are revictimizing the victim and the family’s innocent children.  See 8.30, supra.

 

                (5)  There is no comparable ground of inadmissibility.  That is, a qualifying conviction triggers deportation, but not inadmissibility, since Congress did not put DV convictions on the list of grounds of inadmissibility.  Therefore, a noncitizen in deportation proceedings can apply for adjustment of status, even if s/he was already a lawful permanent resident, based on the marriage to a United States citizen or lawful permanent resident, as a defense to removal.  See § 24.2, infra.  This is similar to the firearms deportation ground, which has no parallel ground of inadmissibility, in which the BIA has permitted adjustment of status which, if granted, constitutes a defense against removal.[14]

 

                (6)  This discussion has focused on avoiding deportation for this category of offense.  It is important to verify that a domestic violence conviction does not trigger immigration damage in other ways.  The most important are if the conviction constitutes (a) an aggravated felony (as a crime of violence with a one-year sentence imposed, even if not against a listed victim), (b) a crime involving moral turpitude, or (c) a “particularly serious crime” which will disqualify him or her from obtaining political asylum or withholding of deportation.  See § 22.6, infra.  A noncitizen may not obtain naturalized citizenship while s/he is on probation.  If the defendant serves 180 or more actual days in custody during a Good Moral Character period, s/he may be barred from showing Good Moral Character, and thus become disqualified from obtaining naturalization or other immigration benefits.  See § 22.7, infra.

[11] See, e.g., California Penal Code § 236, a misdemeanor, which does not involve force or violence.

[12] Berger v. United States, 295 U.S. 78, 85-89 (1935).

[13] Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 757 (1972).

[14] See, e.g., Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992).

CAL POST CON - DIVERSION - NO-PLEA DOMESTIC VIOLENCE DIVERSION
No "admission of guilt" was required under this domestic violence no-plea diversion statute. Penal Code 1001.6(c). It was enacted by Stats. 1979, c. 913, p. 3141, 1, last amended by Stats. 1993, c. 221, 1, and repealed in 1995, repeal effective Jan. 1, 1996.