Domestic Violence Laws and the Ina: How Domestic Violence Perpetrators Attain Immigration Benefits

• Publication year: 2020
• Author: By George T. Emmons*

DOMESTIC VIOLENCE LAWS AND THE INA: HOW DOMESTIC VIOLENCE PERPETRATORS ATTAIN IMMIGRATION BENEFITS

By George T. Emmons^*

Every 24 minutes, someone is the victim of domestic violence.¹ Even more shocking is that 1 in 4 women and 1 in 7 men have been victims of severe physical abuse by an intimate partner in their lifetime.² And, more than 4,000 women each year are killed by their partners.³ Domestic violence also takes tolls on children. Often, 30% to 60% of children in violent households are also the victims of domestic violence and 1 in 4 have witnessed physical violence of their mother, father and their intimate partners.⁴

Domestic violence is a serious problem. Domestic violence perpetrators inflict significant harm on their partners and are more likely than other violent offenders to be re-arrested for violent offenses against the original victim.⁵ There are several reasons for this high level of recidivism. According to a 2004 Canadian study analyzing recidivism in domestic violence arrests, substance abuse and financial and economic instability were some of the factors that led to higher recidivism rates amongst domestic violence perpetrators.⁶ Also, a study conducted in Federal Probation found that 41% of domestic violence perpetrators that were assigned to domestic violence counseling and probation reoffended before the end of their 24 month probation term.⁷ This study also found that domestic violence counseling has had limited success in deterring domestic batterers.⁸

However, despite the harm domestic violence perpetrators inflict on our society, our laws do not hold domestic violence perpetrators accountable for their actions. Specifically, in the immigration context, many who have been convicted of California Penal Code domestic violence crimes are not removable from the United States and some are allowed to garner significant immigration benefits.⁹

Under current immigration law, some domestic violence perpetrators, who have been convicted in California state courts, are found to not have been convicted of a removable offense.¹⁰ In other words, certain aliens, who have been convicted of a crime of domestic violence, are found to be improperly involved in immigration proceedings because their domestic violence conviction is not a removable offense.¹¹ In these instances, the alien's removal proceedings are terminated and they are allowed to stay in the United States.¹²

Some domestic violence perpetrators are allowed to seek immigration relief. In fact, depending on the type of conviction, these perpetrators are eligible for legal permanent resident status.¹³ As stated above, unless the alien is convicted of an enumerated aggravated felony or particularly serious crime, they are allowed to seek all forms of immigration relief.¹⁴

California domestic violence laws are not removable offenses because the statute and criminal records do not make them crimes of moral turpitude¹⁵ or crimes of domestic violence under federal law.¹⁶ In the BIA case of In re Sanudo, the BIA held that that a conviction under California Penal Code § 243 was not a crime of moral turpitude or a crime of domestic violence.¹⁷ The court reasoned that since the statute did not require actual infliction of injury, the crime was not a crime of violence as defined in federal law.¹⁸ Since a petitioner could be convicted for an intentional touching under the statute, it encompassed more conduct then the federal definition of a crime of violence and therefore was not a qualifying conviction.¹⁹ The court also noted that the crime of domestic violence did not have the aggravating factors that were usually necessary for determining that a crime was so reprehensible as to be considered a crime involving moral turpitude.²⁰

In applying the modified categorical approach, the court only considered certified copies of the criminal complaint, the plea agreement, and the criminal judgment.²¹ In looking at these documents, they did not find that these documents demonstrated the requisite infliction of harm required in proving a conviction under Cal Penal Code § 243.²² The court did not consider the police report, which was a part of the conviction record. The court reasoned that since "there was no indication that [the police report] was incorporated into the charging instrument under the convicting state's rules of criminal procedure, it was "not admissible to prove the nature of the respondent's conviction."²³

Take California Penal Code § 243(e)(1) as an example. This section provides that when a "battery is committed against a spouse, a person with whom the defendant is cohabitating . . . or has previously had a dating or engagement relationship, the battery is punishable by a fine . . . or by imprisonment in a county jail for a period of not more than one year . . .²⁴ Battery is defined as "any willful and unlawful use of force or violence upon the person of another."²⁵ Battery can include "an unprivileged touching of the victim by means of force or violence."²⁶

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The Ninth Circuit has determined that because Cal Penal Code § 242 and 243(e)(1) only require an unprivileged touching, that they do not qualify as crimes of domestic violence.²⁷ Since crimes of domestic violence require an intent element not found in Cal Penal Code § 243(e)(1), it does not categorically qualify as a crime of domestic violence.²⁸

Since Cal Penal Code § 243(e)(1) does not qualify categorically as a crime of domestic violence, the inquiry continues. Under the modified categorical approach, the court can consider limited documents in the record of conviction. However, not all documents that are relevant are necessarily admissible. For instance, a police report, on its own, is not admissible to prove the nature of the crime unless it is specifically incorporated into the charging document.²⁹ If it is not, then it cannot be considered in the modified categorical approach.

Contrast Cal Penal Code § 243 with Cal Penal Code § 273.5(a). This statute reads:

Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment.³⁰

The statute also defines the protected groups of people encompassed by the statute.³¹ These protected persons include spouses, cohabitants or those holding themselves to be spouses or cohabitants to name a few. ³²

Cal. Penal Code § 273.5(a) is categorically a crime of domestic violence and a deportable offense, due in large part to the "willful infliction language" of the statute.³³ The Ninth Circuit found that the force mentioned in Cal. Penal Code §273.5(a) went beyond the force mentioned in Cal. Penal Code § 242.³⁴ While § 273.5(a) requires willful force and an injury; § 242 and §...