Criminal Defense of Immigrants


§ 22.38 (B)

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(B)  Validity of Court Order.  It may be possible to attack the validity of the court finding that the noncitizen has violated the protective order by collaterally attacking the validity of the protective order.[171]  While in general, the prosecution need not prove beyond a reasonable doubt[172] the facts on which a state court order imposing child support obligations was predicated,[173] the validity of the state court order may be subject to collateral challenge on due process grounds.[174]  In holding that the underlying proceeding must have been lawful for federal criminal sanctions to attach, the Ninth Circuit has raised the possibility that the same reasoning may require allowing the defendant to make a showing that the proceeding underlying the protective order resulted in an invalid order.[175]


                It is therefore important to examine the particular statutory basis under which the protective order was issued to determine whether the order was issued and served in compliance with the statute.[176]

[171] See Annot., Child Support Recovery Act, 147 ALR Fed. 1.  But see United States v. Young, 458 F.3d 998 (9th Cir. Aug. 17, 2006) (18 U.S.C. § 922(g)(8)(A) makes it a federal offense to possess a firearm by one against whom a domestic violence restraining order has been issued “after a hearing of which such person received actual notice, and at which such person had an opportunity to participate” and there is no right to collaterally attack the constitutionality of the state court restraining order since those proceedings are immaterial except to the extent that the federal statute explicitly requires certain procedural protections).

[172] 18 U.S.C. § 228.

[173] United States v. Johnson, 114 F.3d 476 (4th Cir. 1997), cert. denied, 118 S.Ct. 258 (1997).

[174] United States v. Lewis, 936 F. Supp. 1093 (D.R.I. 1996), citing United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (where a determination in an administrative proceeding plays a critical role in a later criminal sanction, there must be some meaningful review of the administrative proceeding).

[175] See Beier v. City of Lewiston, 354 F.3d 1058  (9th Cir. 2004) (allowing waiver of sovereign immunity against police officer who arrested petitioner for violating a protection order without knowing exact terms of order before making arrest for violation).

[176] In California, for example, the specific authority for the Emergency Protective Order (EPO) is Calif. Family Code § § 6250-6257.  These orders expire in five days and it is assumed that the alleged victim will have obtained a Temporary Restraining Order (TRO) by the time the EPO expires. A violation of either the EPO or TRO is prosecuted under California Penal Code § 166 as a misdemeanor with a six-month maximum sentence.