Offense
Assault with a deadly weapon (firearm or other) or with force likely to cause great bodily injury; (c) is when V is a peace officer or fireman at work
Aggravated Felony (AF)
Get 364 or less to avoid an AF as COV.1See, e.g., U.S. v. Vasquez-Gonzalez, 901 F.3d 1060 (9th Cir. 2018), United States v. Jimenez-Arzate, 781 F.3d 1062 (9th Cir. 2015). Assume all subsections are a COV.
Crime Involving Moral Turpitude (CIMT)
Ninth Circuit held it is a CIMT.2The Ninth Circuit en banc reversed past precedent and remanded to the BIA to decide in the first instance whether § 245(a)(1) is a crime involving moral turpitude, in light of changes in state and federal law. Ceron v. Holder, 747 F.3d 773 (9th Cir 2014) (en banc). The BIA reaffirmed its opinion that all subsections of § 245(a) are CIMTs. Matter of Wu, 27 I&N Dec. 8 (BIA 2017). Subsequently the court deferred to the BIA and held that essentially all of § 245(a) is a CIMT, when it deferred to the BIA’s holding that a previous version of 245(a)(1), which had included what now is in 245(a)(1)-(4), was categorical a CIMT. Safaryan v. Barr, 975 F.3d 976 (9th Cir. 2020) (defers to BIA’s holding that former Pen C § 245(a)(1) which prohibited “assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury” is categorically a CIMT); see also Matter of Aguilar-Mendez, 28 I&N Dec. 262 (BIA 2021) (Pen C § 245(a)(4), assault with force likely to produce great bodily injury, is categorically a CIMT).
Other Removal Grounds
Can be deportable crime of DV; see Advice.
To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC. See 243(a).
Firearms. Because (a)(2) uses the definition of firearm at PC 16520(a), no conviction for (a)(2) is a deportable firearms offense. But (a)(3) is specifically for machineguns and assault weapons and thus has no antique firearm defense. See PC 246.
To avoid any error, a safer plea is to 245(a)(1) or keep ROC clear of evidence that offense was (a)(2) or esp.(3).
Advice and Comments
Crime of domestic violence. Because PC 245 is a COV, it is a deportable crime of DV if there is sufficient evidence that V and D shared a relationship protected under state DV laws.
To avoid a deportable crime of DV:
-Plead to a COV such as PC 245, 243(d), but against a V without protected status (e.g., neighbor, police, ex-wife’s new boyfriend) or against property (e.g., PC 591, 594). Get 364 days or less imposed on each count.
-Plead to a non-COV, e.g., PC 32, 136.1(b)(1), 243(e), 236/237, 459, 487, against a V with protected status. Some of these can take a sentence of a year.
-Do not plead to a COV against a protected party and rely on the fact that a vague ROC does not ID the party as an immigration defense. The law is volatile in this regard. If that was done in a prior conviction, immigration counsel should see below endnote for defenses in removal cases.
For further discussion and citations, see this endnote.3Deportable crime of domestic violence. To prove that an offense is a deportable “crime of domestic violence,” (“crime of DV”), ICE must prove that the offense is a crime of violence (COV) under 18 USC § 16(a), and that the victim and defendant share a qualifying domestic relationship as set out in the deportation ground. That is defined as, among other things, any relationship protected under domestic violence laws of the state. See INA § 237(a)(2)(E)(i), 8 USC § 1227(a)(2)(E)(i). In California, this includes former dates or former co-habitants.
There is conflicting precedent about what evidence may be used to prove this relationship. Defenders should conservatively assume that ICE will be able to use any evidence, including testimony or other evidence from outside the record of conviction. This is the BIA’s view. See Matter of H. Estrada, 26 I&N Dec 749 (BIA 2016). Defenders should not plead to a COV where the defendant and victim actually share a relationship, and trust that by keeping the record of conviction vague as to the victim the conviction will not be held a crime of DV. Instead they should either plead to a COV with a specific, non-protected victim (the neighbor, police officer, ex-wife’s new boyfriend, etc.); to a COV against property; or if there is a protected relationship, plead to a non-COV (see suggestions below). If pleading to a COV, do not take a sentence of one year or more on a single count, or it will become an aggravated felony.
In dealing with a prior conviction where this was not done, removal defense advocates can cite current Ninth Circuit law holding that the protected relationship can be proved only with evidence from the reviewable record of conviction (charge pled to, plea colloquy or written agreement, judgment, and factual basis for the plea). See Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004); Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. 2006). The risk here is that while this is good law now, in the future the Ninth Circuit may agree to adopt the BIA’s rule in Matter of Estrada, as some other federal courts of appeals have.
There are many offenses—ranging from misdemeanors to strikes—that are appropriate substitutes in a DV situation and that are not COVs, and that therefore will not create a deportable crime of domestic violence. A defendant could plead to committing the following against her husband without it being a deportable crime of DV: felony or misdemeanor §§ 32, 136.1(b)(1), 243(e), 460(a), 594, and probably 236/237 and 207. The Ninth Circuit (wrongly) held that 243(d) is a COV; see that section. The misdemeanor/ felony/strike designation does not matter, but only some of these offenses can take a sentence imposed of a year or more. See individual offenses in the chart.
To cause deportability under this ground, the conviction must be from on or after September 30, 1996 and after the person was admitted into the United States. For further discussion see ILRC, Case Update: Domestic Violence Deportation Ground (2019) at www.ilrc.org/crimes.
Misd is a “significant misdemeanor” for DACA if committed against DV-type victim, but PC 1203.4 might eliminate. See PC 25400.