Offense
Violation of a protective or stay-away court order protecting various subjects
Aggravated Felony (AF)
PC 166(c)(1)-(3) Not a potential AF because the maximum sentence for a conviction after 1/1/15 is 364 days.
PC 166(c)(4) is an AF as a COV if a year or more is imposed.1PC 166(c)(4) (as well as PC 273.6(d)) as a COV. As discussed above, these convictions may cause deportability as a judicial finding of a violation of a DV stay-away order, under INA § 237(a)(2)(E)(ii). This section is about a different issue: whether these offenses are a crime of violence (COV), and therefore an immigration “aggravated felony” if a sentence of a year or more is imposed. See INA § 101(a)(43)(F) Sections 166(c)(4) and 273.6(d) are nearly identical, and this analysis applies to both. They punish as a wobbler a “second or subsequent conviction for a violation of an order described in paragraph (1) occurring within seven years of a prior conviction for a violation of any of those orders and involving an act of violence or ‘a credible threat’ of violence…” (emphasis supplied). In U.S. v. Acevedo-De la Cruz, 844 F.3d 1147 (9th Cir. 2017), the Ninth Circuit held that PC § 273.6(d) is a COV under a definition that is identical to 18 USC § 16(a). This holding would apply to § 166(c)(4) as well. The court stated, “[w]hen interpreting other state statutes, California courts have adopted this common understanding of the word ‘violence’ in concluding that force can occur without violence, but violence cannot occur without force.” Id. at 1151. See also CALCRIM 2703, cited for both PC §§ 166(c)(4) and 273.6(d).
Removal defense advocates representing a client who already has this conviction could try to challenge Acevedo-De la Cruz by finding a case example of §§ 166(a)(4) or 273.6(d) that involves an offensive touching or other conduct that is not a COV. The defendant in Acevedo-De la Cruz did not do this, and so did not demonstrate a “realistic probability” that the statute would be applied to conduct outside the COV definition. As always, advocates pursuing an untried argument also should investigate the possibility of obtaining post-conviction relief, while the immigration case is pending.
Crime Involving Moral Turpitude (CIMT)
While there are no cases, at least 166(c)(1) and (3) should not be held a CIMT as they can be committed by a small or technical violation. Try to avoid (c)(2) (causing injury).
Assume that (c)(4) will be treated as a CIMT because it involves use or credible threat of violence.
Other Removal Grounds
DV deportation ground: A civil or criminal court finding of any violation of any DV “stay-away” or protective order or provision will make the person deportable. See 166(a), above.
Any conviction under 166(c)(1)-(4) is a deportable offense if D and V share a protected domestic relationship. See discussion at 166(a), above. To protect D from this, identify a specific victim who does not have a protected relationship with D, or plead to a different offense. See Advice.
Advice and Comments
PC 166(c)
DV deportation ground. To avoid deportability, consider a plea to 166(a)(1)-(3), or to a new offense (if possible, not against the subject of the protective order) with no finding of violation of an order, as discussed at 166(a), above.
If one must plea to 166(c), try to create a plea that identifies a specific victim who does not have a domestic relationship with D. For example, 166(c)(1)(A) prohibits violating an order issued pursuant to 136.2, which can include DV or non-DV victims. Section 166(c)(1)(C) prohibits violating an order by committing elder abuse, PC 368, which can involve an elder with no domestic relationship (including no parent, grandparent, or sibling).
Do not rely on creating a vague order that does not reveal the victim. ICE can use any relevant and probative evidence, including from outside the record of conviction, to prove that the order that the judge found was violated was actually a DV stay-away order.