Criminal Defense of Immigrants


§ 22.22 3. Limitation to Record of Conviction

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The government in domestic violence cases attempts to use a wide range of evidence to establish the relationship between the defendant and the victim, including police reports, marriage records, evidence of enhancements for domestic violence, and even testimonial evidence.  Even if the immigration authorities adopt the argument that the wording of the domestic violence conviction ground of deportation “invites” them to go beyond the elements of the offense, and allows them to examine the facts of the case to see whether a conviction triggers deportation, there is no justification for going outside the record of conviction that limits them with respect to all other conviction-based grounds of deportation: aggravated felonies, crimes of moral turpitude, firearms offenses, and the like.  See § 16.15, supra.  Some courts, unfortunately, have chosen to look beyond the record of conviction in DV cases.

                The Seventh Circuit, for example, affirmed the BIA where the respondent admitted in immigration proceedings that the victim was his wife.[85]  In analyzing the issue, the Seventh Circuit stated:


Although § 16(a) directs attention to the statutory elements, § 237(a)(2)(E) of the immigration laws departs from that model by making the “domestic” ingredient a real-offense characteristic. Thus it does not matter for purposes of federal law that the crime of battery in Indiana is the same whether the victim is one’s wife or a drinking buddy injured in a barroom. The injury to a “domestic partner” is a requirement based entirely on federal law and may be proved without regard to the elements of the state crime.  See Sutherland v. Reno, 228 F.3d 171, 177-78 (2d Cir. 2000).  Substantial evidence, independent of Flores’s admission, shows that the victim was his wife. When classifying the state offense of battery for purposes of § 16(a), however, the inquiry begins and ends with the elements of the crime.[86]


The Second Circuit likewise affirmed an order where the source of the evidence as to the relationship was not specified.[87]


                The BIA has no published interpretation regarding what evidence is probative of the relationship.  Outside the Second and Seventh Circuits, there is no controlling authority that would allow evidence outside the record of conviction.  In an analogous context, the Ninth Circuit held that it would not go outside the record of conviction to determine the loss to the victim in an aggravated felony fraud charge where the government was required to prove the loss exceeded $10,000 to sustain the charge.  Arguably, the BIA should have to explain why domestic violence deportability is not subject to the same rule as the other criminal grounds of deportability.[88]  See § 22.26(D), infra, for discussion of cases in which the record of conviction does not establish a listed victim.

[85] Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003). 

[86] Flores v. Ashcroft, 350 F.3d 666, 670  (7th Cir. 2003). 

[87] Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000).

[88] See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991) (allowing agency to change its interpretation, but only if it provided a reasoned explanation).