Criminal Defense of Immigrants

(B)  Immigration or Federal Criminal Context.  Domestic violence convictions also have an effect on the elements and sentences of certain federal criminal offenses.  Cases decided in the federal criminal context sometimes use a different analysis (looking at the facts) than cases decided in the immigration context (looking at the elements).[77]

However, even in the context of the Armed Career Criminal Act, the Ninth Circuit held a Hawaii conviction of abuse of a family or household member[78] did not constitute a conviction of a misdemeanor crime of domestic violence, for purposes of constituting a federal offense of firearms possession after suffering a domestic violence conviction,[79] because neither the Hawaii statute standing alone nor the judicially noticeable facts establish that the victim of the Hawaii offense had the required domestic relationship to the defendant.  The Hawaii statute is divisible with respect to this federal requirement because it allows conviction if the violence occurs between “persons jointly residing or formerly residing in the same dwelling unit,” and therefore includes roommates who have no other, more personal relationship, whereas each of the federal categories of domestic violence, in contrast, specifies particular personal relationships between the victim and the defendant, so a conviction under this statute is not categorically a crime of domestic violence under the federal firearms statute.  See 22.26, infra.

[77] Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. June 26, 2006) (distinguishing between INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) and 8 U.S.C. § 921(a)(33)(A)(i) [sentence enhancement for person with prior domestic violence conviction found in possession of a firearm], in that the former requires that the domestic relationship be an element of the offense, where the latter merely requires that the offense was in fact committed against someone with a domestic relationship), distinguishing United States v. Belless, 338 F.3d 1063, 1065-1067 (9th Cir. 2003).  But see § 19.58, supra, for discussion of Lopez v. Gonzalez, 549 U.S. __ (2006).

[78] United States v. Nobriga, 474 F.3d 561 (9th Cir. May 20, 2005) (per curiam), opinion superseded by 474 F.3d 561 (9th Cir. Dec. 29, 2006).

[79] 18 U.S.C. § 921(a)(33)(A)(ii).