These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
crime of domestic violence
The Sixth Circuit has determined that a Tennessee misdemeanor domestic assault is not a crime of violence because it includes inflict of mental harm.
The full text of Sanchez-Perez v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0098p-06.pdf
The Seventh Circuit has determined that the domestic relationship between perpetrator and victim need not be an element of the statute of conviction to establish deportability under section 237(a)(2)(E)(i) of the INA. Instead, the relationship may be established using the circumstance specific approach outlined in Nijhawan v. Holder.
The full text of de Jesus Caldera-Torres v. Garland can be found here:
The Board of Immigration Appeals has determined that a Louisiana conviction for domestic battery is not a crime of violence (or, accordingly, a crime of domestic violence) because it criminalizes offensive touching. The Board also noted that it is the Supreme Court’s definition of violent force in Johnson and Stokeling, and not its definition of a misdemeanor domestic violence offense in Castleman, that governs the analysis under section 237(a)(2)(E)(i) of the INA.
The full text of Matter of Dang can be found here:
The Seventh Circuit has reaffirmed that a Wisconsin conviction for battery involving domestic abuse is a crime of domestic violence because it involves the use of violent force.
The full text of Beltran-Aguilar v. Whitaker can be found here:
The Ninth Circuit has amended its decision in Cornejo-Villagrana v. Sessions. In the amended opinion, the court recognized that Arizona’s misdemeanor domestic assault statute is divisible between intentional use of force and reckless use of force. However, the court determined that the record was clear that the petitioner had been convicted of a Class 1 misdemeanor, which required that his assault involve the intentional or knowing infliction of injury. Thus, the court declined to address whether the reckless use of force would be sufficient to constitute a crime of violence.
The amended opinion can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/27/13-72185.pdf
The Board of Immigration Appeals has determined that the crime of domestic violence deportability ground is subject to a circumstance specific analysis. Specifically, the question as to whether a conviction meets the definition of a crime of violence will be analyzed under the categorical approach, while the domestic nature of the relationship will be analyzed under the circumstance specific approach. This approach allows adjudicators to consult police reports and other reliable evidence outside of the record of conviction to determine if a domestic relationship existed between the defendant and the victim.
The full text of Matter of H. Estrada can be found here: https://www.justice.gov/eoir/file/862581/download
The Fourth Circuit has adopted a "circumstance specific" approach to analyzing the crime of domestic violence deportability ground as opposed to the traditional "categorical approach" that is typically employed to evaluate the immigration consequences of a criminal conviction. This means that the statute of conviction need contain a domestic relationship for a conviction to sustain a charge of deportability. If evidence (i.e. documents from the criminal court) establish that the defendant and the victim had such a relationship, that will be sufficient to render the defendant deportable. Thus, non-citizens in the Fourth Circuit must now be considered that convictions for generic assault crimes, which contain no requirement of a domestic relationship to the victim, may still make them deportable or ineligible for certain forms of immigration relief, if the victim, was in fact, someone with whom they shared a domestic relationship.
The full text of Hernandez-Zavala v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141878.P.pdf
In a published decision, the First Circuit addressed whether a non-citizen could meet his burden of proof to establish eligibility for relief with an inconclusive record of conviction. Peralta Sauceda was convicted under an assault statute in Maine with two prongs. One of these prongs would qualify as a crime of domestic violence - rendering Peralta Sauceda ineligible for cancellation of removal for non-lawful permanent residents - while the other would not. However, the records available did not specify under which prong he had been convicted, and he was unable to obtain any additional records from the criminal court. As such, the First Circuit found that he had not met his burden to prove his eligibility for cancellation of removal for non-lawful permanent residents.
The full text of Peralta Sauceda v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2042P-01A.pdf
Bad news today for Ninth Circuit crimmigration gurus (like myself). The Ninth Circuit has laid to rest any question as to whether Cal. Penal Code 273.5 (a common domestic violence statute that criminalizes assaults on cohabitants - individuals not typically conceived of as part of a domestic violence scheme) categorically matches the definition of a crime of domestic violence (it does). Though I disagree with the court's determination that cohabitants are the substantial equivalent of a spouse (California state law clearly permits a person to have multiple cohabitants at once), the precedential case makes Cal. Penal Code 273.5 a very dangerous conviction for any non-citizen. We will have to eagerly await to see if the court grants a petition for rehearing.
The full text of Marquez Carrillo v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/31/12-70779.pdf
