Criminal Defense of Immigrants

(A)  In General.  Normally, immigration authorities determine whether a given conviction constitutes a domestic violence conviction, for immigration purposes, using the categorical analysis.  See Chapter 16, supra.[76]  Some courts, however, are questioning whether they are bound by the analysis normally employed in immigration proceedings, in case of the domestic violence ground of deportation. One question is whether the court is limited to an examination of the elements of the offense of conviction, as opposed to the underlying facts of the case as disclosed in the record of conviction.  See § 22.21, infra.  A second question is whether the court is limited to the record of conviction, as it is in examining all other conviction-based grounds of deportation, such as aggravated felonies, crimes of moral turpitude, and the like.  See § 22.22, infra.  These questions appear to revolve around congressional intent: did Congress intend the courts to go outside these limits when considering whether a conviction constitutes a domestic violence conviction ground of deportation?

[76] Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. June 26, 2006) (applying modified categorical analysis to determine California conviction of battery, in violation of Penal Code § 242 (any willful and unlawful use of force or violence upon the person of another) is not a crime of domestic violence).