PC 166 (a)(1)–(4)

PC 166 (a)(1)–(4)

Offense

Contempt of court, including violation of any court order

Aggravated Felony (AF)

Not AF because 6-month max.

Crime Involving Moral Turpitude (CIMT)

Should not be CIMT.
(a)(1)-(3) has no intent. This is a good imm plea
(4) should not be held CIMT because minimum conduct is to violate any court order—but there is no imm case on point. However, (4) may be deportable DV offense.

Other Removal Grounds

DV deportation ground: A civil or criminal court finding of any violation of any DV stay-away order will make the person deportable.
A plea to (a)(1)-(3) should be safe and a good imm plea. Nailing this down by creating a specific record showing conduct other than violation of a DV stay-away order, is a good idea.
But creating a vague record under (a)(4) or (b)(1), when in fact the violation is of a DV stay-away order, is not safe.
Instead: (1) Plead to specific conduct relating to non-deportable violations, e.g., re child support, visitation, failure to attend classes, probation mtg, etc., or (2) Plead to a new offense (with ROC sanitized of any mention of a PO) instead of any violation of any order. See Advice.

Advice and Comments

See endnote for further discussion and citations.1A person is deportable under 8 USC § 1227(a)(2)(E)(ii) if a civil or criminal court finds that they violated a portion of a DV order (probation condition, family court order, etc.) that protects against threats, injury, or repeat harassment. The violation must be after admission and after September 30, 1996.

Courts have held that a finding of this type of violation (which we’ll refer to as a DV stay-away order) causes deportability even if it is based on very minor conduct, like walking a child up the driveway after visitation rather than leaving them at the curb. See Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009), Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).

Immigration authorities can use any probative evidence, including from outside the record of conviction, to establish that a court’s finding of violation of a court order is actually a finding of violation of a DV stay-away order, or other portion of a DV order that “involves protection against credible threats of violence, repeated harassment, or bodily injury.” The Ninth Circuit earlier had held that the categorical approach applies to this inquiry and that Pen C § 273.6 was a divisible statute. In July 2019 it reversed itself in order to defer to the BIA’s interpretation, which is that the categorical approach does not apply to this prong of the domestic violence deportation ground (8 USC 1227(a(2)(E)(ii), as opposed to (E)(i)), since this involves a finding of a violation by either a civil or criminal court. See Diaz-Quirazco v. Barr (9th Cir. July 23, 2019), deferring to Matter of Medina-Jimenez, 27 I. & N. Dec. 399 (BIA 2018) and Matter of Obshatko, 27 I&N Dec. 173, 176-77 (BIA 2017) and withdrawing from Alanis-Alvarado v. Holder, 558 F.3d 833, 835, 839-40 (9th Cir. 2009).

Defense counsel already were advised not to rely on a vague record of conviction under Pen C §§ 166 or 273.6 to protect the defendant. Do not plead to any violation of a DV stay-away order. One can plead to violating a part of a DV order whose purpose is not to protect against threats, injury, or harassment, such, as e.g., conduct relating to child custody, visits, or support, or failure to attend classes. A plea to Pen C § 166(a)(1)-(3) should be safe, but specifically state that this was an event related to the court, as opposed to the DV victim. Or, plead to a new, non-deportable offense with an ROC sanitized of violation of any order. If pleading to a new offense, it is optimal to identify a specific victim who is not protected under DV laws or listed in the DV order (e.g., the ex-wife’s new boyfriend, the neighbor, the officer), although this might not be necessary.

A person is deportable if a civil or criminal court judge finds they violated a part of a DV protective order that protects against threat, injury, or repeat harassment.

In 2019 the Ninth Circuit withdrew from prior decisions and deferred to the BIA as to what evidence DHS can use to show that a judge’s finding of violation of “an order” actually is a finding of violation of a DV stay-away order (or other portion of a DV order that is meant to protect against injury, threats, or repeat harassment). ICE can use evidence from outside the ROC to prove the violation the court found was of those portions of a DV stay away order, because the categorical approach does not apply to this prong of the domestic violence deportation ground. Best practice is plead to 166(a) with specific non-deportable conduct (see other column) or else to a new offense that is sanitized of any order violation. For best protection, new offense should be against a V not listed in the order or to a victimless crime; but if that is not possible, any non-deportable offense.

2020-10-22T18:47:27+00:00Updated January 29th, 2020|