Criminal Defense of Immigrants
§ 22.21 2. Limitation to Elements of the Offense
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Most grounds of deportability are element based. A noncitizen is deportable for a firearm offense, for example, if s/he is convicted of an offense that has a listed weapon as an element. If the domestic violence ground of deportability were element-based, then only offenses in which a family relationship was an element (e.g., domestic assault) would qualify. The Second and Seventh Circuits have held that there is no requirement that an offense have a family relationship as an element to satisfy the domestic violence ground of deportability. The Ninth Circuit has held that an offense must have domestic violence as an element to trigger deportation under this ground. The BIA has no published interpretation as to whether the domestic violence ground is element based. A new decision, however, suggests that the BIA may soon decide that the underlying facts may be examined in the domestic violence and other contexts. See § 22.26(D), infra, for discussion of cases in which the record of conviction does not establish a listed victim.
In the context of determining whether a defendant has committed the federal offense of possession of a firearm by someone with a domestic violence conviction, the courts do not require the domestic relationship to be an element of the offense of conviction.
 Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992).
 Sutherland v. Reno, 228 F.3d 171, 177-78 (2d Cir. 2000) (holding that a conviction under a general offense statute – which had no element requiring a particular domestic or other relationship between offender and victim – 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).
 Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004) (Oregon convictions of First Degree Burglary and Attempted First Degree Kidnapping, in violation of Or. Rev. Stat. § § 163.225, 163.235, found not to be “crimes of domestic violence,” under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for deportation purposes, since there was no evidence in the record of conviction that victim was protected person under that statute, and Immigration Judge was precluded from relying upon testimony adduced at removal hearing, including admissions by respondent).
 See § 16.7, supra. Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007).
 United States v. Nobriga, 474 F.3d 561 (9th Cir. Dec. 29, 2006) (predicate domestic violence offense need not have domestic relationship as an element to qualify as domestic violence offense for purposes of federal firearm offense, under 18 U.S.C. § 922(g)(9), construing Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes § 709-906(1)), following United States v. Belless, 338 F .3d 1063 (9th Cir. 2003); see White v. Dep’t of Justice, 328 F.3d 1361 (Fed.Cir. 2003); United States v. Shelton, 325 F.3d 553 (5th Cir. 2003); United States v. Kavoukian, 315 F.3d 139 (2d Cir. 2002); United States v. Barnes, 295 F.3d 1354 (D.C.Cir. 2002); United States v. Chavez, 204 F.3d 1305 (11th Cir. 2000); United States v. Meade, 175 F.3d 215 (1st Cir. 1999); United States v. Smith, 171 F.3d 617 (8th Cir. 1999).