Offense
Contempt of court, including violation of any court order
Aggravated Felony (AF)
Not a potential AF because 6-month max.
Crime Involving Moral Turpitude (CIMT)
Should not be CIMT.
(a)(1)-(3) has no intent.
(a)(4) should not be held CIMT because minimum conduct is to violate any court order—but there is no imm case on point.
(But (4) might be a deportable DV offense; see next column).
Other Removal Grounds
DV deportation ground: A civil or criminal court finding of any violation of any DV “stay-away” order or condition will make the person deportable.
Best practice is plead to 166(a)(1)-(3) with specific non-deportable conduct. See Advice.
Pleading to (a)(4) or (b) when the violation was of a DV protective order is very risky. Try to:
-Plead to a violation of a non-DV order, or to violating a different portion of a DV order, e.g., regarding child support, attending classes.
-Or plead to a new (immigration-neutral) offense, with no finding of violation of any order.
See Advice.
Advice and Comments
PC 166(a)
See endnote for further discussion and citations1PC § 166 as a deportable finding. A person is deportable under the “domestic violence” deportation ground, INA § 237(a)(2)(E)(ii), 8 USC § 1227(a)(2)(E)(ii), if a civil or criminal court finds that they violated certain portions of a DV protective order. The violation must be after admission and after September 30, 1996. The provision reads:
INA 237(a)(2)(E)(ii) Violators of protection orders
Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.
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. and see ILRC, Case Update: Domestic Violence Deportation Ground (March 2022). Note that the deportation ground at 8 USC 1227(a)(2)(E)(ii) describes the provision in detail.
DV Deportation Ground Definitions. A non-USC 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. We’ll refer to this as any type of DV “stay-away” provision, e.g., restricting phone calls, social media, physical distance.
A DV “protective order” is broadly defined as “any type of civil or criminal injunction issued for the purpose of preventing violent or threatening acts of domestic violence.” Assume any family court orders, probation conditions, delinquency orders, etc.
Any conduct that violates the order can count, even if it was non-threatening or casual. The Ninth Circuit held that a criminal court judge’s finding that D violated an order by walking a child halfway up the driveway after visitation, when they were supposed to drop them at the curb, was a basis for deportability.
The required “domestic relationship” includes, among others, any person protected under the state DV laws. For California this includes spouses, dating relationships, co-parents, co-habitants, as well as relationships with second degree of consanguinity: parents, grandparents, children, grandchildren, siblings.2See, e.g., chart at http://www2.courtinfo.ca.gov/rulesofconduct/files/tableofconsanguinity.pdf
166(a)(1)-(3). A plea to 166(a)(1)-(3) should not be deportable because the sections specify court disturbances, not violation of a protective order. (If the subject of a protective order is in court, ensure that the judge’s finding is for specific conduct not directed at that person.)
166(a)(4), (b). A plea to (a)(4) or (b) is dangerous if in fact the violation involved a DV protective order. One option is to plead to violating a specific, different type of order (or different portion of a DV protective order). Here, do not rely on creating a vague court finding that does not specify the provision that was violated: on this issue, ICE can use any probative and substantial evidence from any source to show that a judge’s finding of violation of “an order” actually was a finding of violation of a DV stay-away order or other portion of a DV order meant to protect against injury, threats, or repeat harassment.
If you must plead to (a)(4) or (b) involving a DV order, plead to violating a part of the order whose purpose is not to protect against threats, harassment, etc., e.g., to problems relating to child custody, visits, or support, or failure to attend classes or probation meetings.
Another option is to plead to a new, immigration-neutral offense rather than to violating any order. Consider PC 370, 415, trespass, 243(a) (or even (e)), 459, 591, 594, or others. It is optimal, but probably not necessary, to get these extra protections: (a) plead to a victimless crime or identify a specific victim not listed in the DV order (e.g., the ex-wife’s new boyfriend, the neighbor, the officer), and/or (b) where possible, have the record sanitized of charges of violation of any order. But most important is to keep to the new offense, with no finding by the judge of violation of an order.
Removal defense advocates may note that ICE might not obtain information about the basis for a finding of probation violation, much less a family court finding of violation, and ICE has the burden to prove deportability. In contrast, rap sheet will show a conviction of 166 or 273.6, although it may not show more.
Defenders: Warn clients not to violate a stay-away order. When a non-USC client gets any kind of DV stay-away order or condition, warn them that it is critical not to violate this in the smallest way. If they are charged with violating an order, tell your PD that you need immigration advice before resolving the case, including VOP.