(D)  Where Record of Conviction Does Not Establish Listed Victim.  If a defendant is convicted of spousal abuse under a statute such as California Penal Code § 273.5, in which the elements require the offense to be committed against a spouse, the protected relationship is automatically shown by the elements of the statute.  On the other hand, if the defendant is convicted, for example, of battery with injury under a statute such as California Penal Code § 243(d), that does not require any relationship as an element, immigration judges have been inconsistent as to whether the government could depart from the fundamental rule that all information showing deportability must be contained in the record of conviction, and be permitted to introduce other evidence of the relationship in immigration proceedings, such as new testimony, a marriage certificate, etc.  Immigration and federal courts differ to some extent as to whether they allow the government to stray outside (a) the elements of the offense, see § 22.21, supra (limitation to elements of the offense), or (b) the formal record of conviction for the purpose of establishing that the victim of a crime of violence was a person protected under the domestic violence deportation ground.  See § 22.22, supra (limitation to record of conviction).

 

                Criminal defense counsel can avoid deportability under this ground even while entering a plea of guilty to a crime of violence, as long as they carefully keep the record clear of proof of a domestic relationship.  The Ninth Circuit found[116] that when the victim was not named in the count of conviction for California battery, the following did not establish the domestic relationship:

 

(1)  Dismissed counts[117] that had named a victim and alleged that the victim had a domestic relationship;

 

(2)  A protection order directing him to stay away from a person of the same surname as the victim in the dismissed count;[118]

 

(3)  The fact that the defendant was ordered to attend domestic violence counseling;[119] and

 

(4)  The fact that the defendant, in immigration proceedings, stated that the person named in the stay-away order was his ex-wife.[120]

 

        If defense counsel has stipulated that the police report (or other document containing a statement of facts of the case) provides a factual basis for the plea, the immigration authorities may be able to consider that document as part of the record of conviction.  See § 16.24, supra.  If it shows a protected relationship between defendant and victim, the immigration authorities may conclude this element of the domestic violence conviction deportation ground has been established.  Second, this analysis is specific to state law.  The beneficial holding of Cisneros-Perez does not apply if under state law the conviction is officially designated as involving domestic violence, such as under Ariz. Rev. Stat. § 13-3601, or by the domestic violence “stamp” on the record in Washington state. These designations establish the domestic relationship required for the deportation ground.  If they cannot be avoided, the criminal defense focus must be on pleading to an offense that does not constitute a crime of violence.

 

                In Tokatly v. Ashcroft,[121] the Ninth Circuit held that the Immigration Judge erred by considering the facts underlying a criminal conviction to determine whether it fell within the domestic violence ground of deportation.[122]  The court therefore granted the petition for review, and vacated the order of removal.

 

                The Immigration Judge in Tokatly had, over objection, considered the testimony of the victim in immigration proceedings as to the nature of her relationship with the noncitizen in concluding that the crime of violence constituted a “crime of domestic violence” for deportation purposes.  At a later hearing to consider relief, the noncitizen himself testified as to the nature of his relationship with the victim.  The noncitizen argued that the categorical and modified categorical approach of Taylor v. United States[123] applies to the determination whether the convictions constituted crimes of domestic violence, and that the evidence in the record of conviction that the Immigration Judge was entitled to consider under Taylor — the judgment, the indictment, and the guilty plea from the state record of conviction — failed to establish that the Immigration Judge was not permitted to “examine the facts behind the conviction,” or to rely on testimonial evidence outside the record of conviction, to determine whether the conviction qualified as a basis for removal.[124]  The Ninth Circuit agreed.[125]

 

                The court also rejected the government’s argument that even if the IJ could not consider the victim’s testimony, the court should allow consideration of the noncitizen’s judicial admissions respecting the nature of his criminal conduct. The court, however, rejected this suggestion, citing one BIA and one Ninth Circuit decision.[126]

 

                The court adopted this rule to prevent the immigration proceedings from degenerating into a relitigation of the underlying facts of the case, which would be very difficult administratively and potentially present many difficult questions without any bright line way of limiting the factual inquiries.  See § 16.19, supra.

 

                Under Tokatly, the domestic relationship necessary to bring a crime of violence conviction within the domestic violence ground of deportation must be established within the four corners of the traditional record of conviction used to assess aggravated felonies, crimes of moral turpitude, and all conviction-based grounds of deportation.  Therefore, convictions of simple assault or battery, the elements of which do not require the victim to be in a domestic relationship with the defendant, cannot trigger deportation under the domestic violence deportation ground.  The same holds true of all other crimes of violence.  This rule governs cases decided within the Ninth Circuit, but it is possible that other circuits may disagree with the Ninth Circuit’s decision in Tokatly.  It should be remembered that a noncitizen may be at risk if s/he undergoes immigration proceedings in another circuit, which may have adopted a different rule, even though the conviction occurred within the Ninth Circuit.

 

[116] Cisnero-Perez v. Gonzalez, 465 F.3d 386 (9th Cir. 2006).

[117] See § 16.30, supra.

[118] See § 16.33(D), supra.

[119] See § 16.33(D), supra.

[120] See § 16.33(M), supra.

[121] 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).

[122] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[123] Taylor v. United States, 495 U.S. 575 (1990).

[124] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[125] Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. June 10, 2004).

[126] Matter of Pichardo, 21 I. & N. Dec. 330, 334-335 (BIA 1996) (the immigration judge’s reliance on the potential deportee’s testimony to establish a requisite element of the removable offense was improper); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003) (factual admissions by noncitizen in appellate brief as to what happened do not establish that the petitioner had actually been convicted of an offense including the elements necessary to bring the offense within the ground of deportation).

DOMESTIC VIOLENCE - DOMESTIC RELATIONSHIP ELEMENT OF THE FEDERAL CRIMINAL FIREARMS POSSESSION OFFENSE NEED NOT BE IN THE ELEMENTS OF THE PREDICATE OFFENSE OF CONVICTION, BUT CAN BE PROVEN BY OTHER EVIDENCE
United States v. Hayes, ___ U.S. ___, 129 S.Ct. 1079 (Feb. 24, 2009) (West Virginia conviction of misdemeanor battery, in violation of W. Va. Code Ann. 61-2-9(c) ("[A]ny person [who] unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, ... shall be guilty of a misdemeanor."), constituted a conviction of a "misdemeanor crime of domestic violence" under 18 U.S.C. 921(a)(33)(A), for purposes of a conviction of illegal possession of a firearm, in violation of 18 U.S.C. 922(g)(9), where evidence outside the elements of the predicate offense established the required domestic relationship.)

Fourth Circuit

CONVICTION -- NATURE OF CONVICTION " CATEGORICAL ANALYSIS " CIRCUMSTANCE-SPECIFIC FACTOR " DOMESTIC RELATIONSHIP DOMESTIC VIOLENCE " DOMESTIC RELATIONSHP " CIRCUMSTANCE-SPECIFIC FACTOR
Hernandez-Zavala v. Lynch, (4th Cir. Nov. 20, 2015) (North Carolina conviction for assault with a deadly weapon, in violation of N.C. Gen. Stat. 14-33(c)(1), is a crime of domestic violence, even though domestic relationship is not necessary to convict; applying circumstance specific analysis to domestic relationship element of 8 U.S.C. 1227(a)(2)(E)(i), INA 237(a)(2)(E)(i)).

Fifth Circuit

DOMESTIC VIOLENCE " NATURE OF RELATIONSHIP NEED NOT BE ELEMENT OF OFFENSE OF CONVICTION
Bianco v. Holder, 624 F.3d 265 (5th Cir. Oct. 20, 2010) (conviction of a crime of violence need not require proof of a domestic relationship to trigger deportation under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), any evidence generally admissible in immigration court may be examined), citing United States v. Hayes, ---U.S. ----, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009)).

Ninth Circuit

DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE
Carrillo v. Holder, 781 F.3d 1155 (9th Cir. Mar. 31, 2015) (California conviction of corporal injury of a spouse, in violation of Penal Code 273.5(a), categorically constitutes a crime of domestic violence, under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), because all of the protected relationships covered by the state offense fall within the definition of the domestic violence ground of deportation).

Other

DOMESTIC VIOLENCE " CALIFORNIA EXPANDED LIST OF PROTECTED RELATIONSHIP CRIME OF MORAL TURPITUDE " CORPORAL INJURY OF SPOUSE
Penal Code 273.5(a), corporal injury of a spouse, was amended to substitute a new (b), which provides a list of covered relationships, without change except adding: The offenders fianc or fiance, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in [Penal Code section 243, subdivision (f)(10). The definition of dating relationship referred to reads: Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. Because this expanded relationship, like the other listed relationships, can be current or former, without any time restriction, it makes it less likely that this offense will be considered a crime involving moral turpitude.

DOMESTIC VIOLENCE " CALIFORNIA EXPANDED LIST OF PROTECTED RELATIONSHIP CRIME OF MORAL TURPITUDE " CORPORAL INJURY OF SPOUSE
Penal Code 273.5(a), corporal injury of a spouse, was amended to substitute a new (b), which provides a list of covered relationships, without change except adding: The offenders fianc or fiance, or someone with whom the offender has, or previously had, an engagement or dating relationship, as defined in [Penal Code section 243, subdivision (f)(10). The definition of dating relationship referred to reads: Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations. Because this expanded relationship, like the other listed relationships, can be current or former, without any time restriction, it makes it less likely that this offense will be considered a crime involving moral turpitude.

DOMESTIC VIOLENCE " CHILD ABUSE " ARGUMENT THE FULL CATEGORICAL APPROACH APPLIES TO CRIMES OF CHILD ABUSE
The BIA in Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), held that the full categorical approach applies to any category of crimes contained in the Domestic Violence deportation ground, INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), including crimes of Child Abuse. The BIA cited Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. June 10, 2004), for this point, but gave no indication they would disagree in other circuits. Therefore, the BIA applies the full categorical approach nationally to crimes of child abuse within the domestic violence ground of deportation. The United States Supreme Court, in Nijhawan and Johnson clarified how to apply the categorical approach to generic offenses such as crimes of child abuse. Nijhawan v. Holder, 129 S.Ct. 2294, 2303 (2009); Johnson v. United States, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (Mar. 2, 2010). In Nijhawan, the Supreme Court affirmed that under the categorical approach, if a criminal statute is missing an element of the offense, a court cannot supply the missing element by looking at the record of conviction. The modified categorical approach, including consulting the record of conviction, can be done only to determine which set of elements (i.e., which offense of two or more), within a divisible statute containing more than one offense was the offense of which respondent was convicted. The Supreme Court in Nijhawan explained how the categorical approach would apply to the loss component of aggravated felony fraud offenses. It found if the strict categorical approach were used, the statute defining the offense must actually have an element of the offense required for guilty requiring a loss in excess of $10,000. A more general loss requirement, or a requirement of "at least $5,000," would not be sufficient, even though the fact of a loss in excess of $10,000 appeared in the record of conviction. Since very few fraud statutes require a loss in excess of $10,000, the categorical approach would practically nullify the fraud offense aggravated felony category. Therefore, Congress did not intend the categorical approach to apply to the loss requirement. Therefore, the court invented the 'circumstance specific' approach to handle that particular aggravated felony category, and very few others where Congressional intent was clear that the categorical approach is not functional. The court concluded, however, that the full categorical approach applies to the fraud offense portion of the fraud aggravated felony, and to all other conviction-based grounds of removal where to do so would not nullify Congressional intent. Nijhawan noted that the full categorical approach does apply to sexual abuse of a minor and cited with approval the Ninth Circuit case of Estrada-Espinoza, which applied the strict categorical approach to sexual abuse of a minor. Nijhawan, supra, at 2300, citing Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). Nijhawan changes the test even in those circuits, like the Seventh, that before Nijhawan had held that the age component of sexual abuse of a minor aggravated felonies or child abuse domestic violence offenses need not be an element of the offense or could be proven by evidence outside the record of conviction. Immigration counsel may not wish to rely on Tokatly, however, in the child abuse context. The crime of domestic violence category, however, under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), has been interpreted to include a circumstance-specific component like the loss requirement of the fraud aggravated felony discussed in Nijhawan. Bianco v. Holder, 624 F.3d 265 (5th Cir. Oct. 19, 2011) (crime of domestic violence need not have as an element the domestic relationship of victim to defendant, and the government can use any admissible evidence to prove this relationship during the removal hearing); see United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079, 1087 (February 24, 2009) (holding that the criminal statute under which the defendant was earlier convicted need not have as a specific element that the accused and victim be in a domestic relationship in order to qualify as a crime of domestic violence under 18 U.S.C. 922(g)(9), prohibiting possession of a firearm by such persons, but the domestic relationship could be proven beyond a reasonable doubt as an element of this criminal offense by evidence beyond the record of conviction of the domestic violence offense). The Ninth Circuit may follow the logic of these decisions, and overrule Tokatly in the future. If that happens, immigration counsel can object to evidence of the domestic relationship during the removal hearing on the basis of the reasonable restrictions that do exist on what evidence can be used to establish a circumstance-specific element of the crime of domestic violence removal ground. In the meantime, immigration counsel can enforce Tokatly unless it is overruled by the Ninth Circuit, but may not wish to bring it up in the child abuse context. Only the domestic relationship portion of the crime of domestic violence deportation ground may legitimately be subject to the circumstance-specific approach. The crime of violence portion remains subject to the strict categorical analysis, and the child abuse portion of the ground is likewise subject to the categorical approach. Even under the circumstance-specific approach in the domestic violence context, immigration counsel can argue that the domestic relationship must be proven beyond a reasonable doubt in the criminal case, since that is what Hayes required. Hayes, supra, at 1087 (To obtain a conviction in a 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way. But that relationship, while it must be established, need not be denominated an element of the predicate offense.); cf. Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (June 14, 2010)(prior controlled substances conviction must be proven up during the criminal proceeding beyond a reasonable doubt to establish the aggravated felony drug trafficking removal ground, even though its not an element of a underlying predicate offense). Immigration counsel, however, should not give up too soon on Tokatly, because the Ninth Circuit has already distinguished a Hayes-type finding about a prior conviction from one in immigration court, in Cisneros-Perez: Here, the contexts of the two decisions involve different statutory provisions, as to which the pertinent considerations are quite different: In Belless, the government was required to prove a second, distinct crime in the second prosecution. We concluded that the domestic aspect of a prior domestic violence conviction can be proven as an element of the second crime whether or not established by the conviction documents in the prior proceeding. Tokatly, on the other hand, involved the application of the modified categorical approach in an immigration case, such as this one, in which the inquiry is confined only to determining the nature of the prior crime. As Tokatly indicated, citing statutory language in the immigration statutes, when Congress wants to make conduct the basis for removal [rather than conviction] it does so specifically. Tokatly, 371 F.3d at 622. We conclude that Belless does not apply in the immigration context. Instead, the clear and direct holding of Tokatly-that the modified categorical approach applies to prior crimes of domestic violence in the immigration context-is controlling. (Cisneros-Perez v. Gonzales 465 F.3d 386, 392 (9th Cir.2006) (emphasis added).) Thanks to Kathy Brady, Dan Kesselbrenner, and Jonathan Moore.