Offense
(a) Assault with
(1) a deadly weapon;
(2) a firearm;
(3) assault weapon or other specified firearm; or
(4) force likely to produce great bodily injury
(c) is when V is a peace officer or fireman at work
Aggravated Felony (AF)
A COV with a year or more imposed is an AF. The Ninth Circuit en banc held that 245(a)(1) is not a COV because the mens rea includes criminal negligence. See discussion of U.S. v. Gomez in Advice.
But because the case could go to the Supreme Court, defenders still should seek 364 days or less to avoid a possible AF.
Still, at this time PC 245(a) is a better choice to avoid a COV than 273.5, 422.
See Advice for alternatives.
Crime Involving Moral Turpitude (CIMT)
Ninth Circuit previously held 245(a) is a CIMT. Defenders should act conservatively and assume that it is.
But immigration practitioners should contest this based on finding in that 245 has a mens rea of criminal negligence, which is not a CIMT1
PC 245(a) as a CIMT. In 2014, the 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 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
Crime of DV. Defenders should act conservatively and try to avoid 245(a) if the victim has a protected relationship, in case Gomez goes to Supreme Court. But 245 is better than 422, 243(d), 273.5. See Advice.
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).
Child abuse. To ensure not wrongly charged as child abuse, keep minor V’s age out of ROC.
Advice and Comments
COV. A COV has two potential immigration consequences. If a year or more is imposed it is an AF, and regardless of sentence, if D and V share a protected relationship, it is a deportable crime of DV.
On January 13, 2026, the Ninth Circuit en banc held that PC 245(a)(1) is not a COV, because it can be committed by criminal negligence. US v. Gomez, — F.4th —-, 2026 WL 90274 (9th Cir. 2026). Arguably this applies to all subsections of 245(a).2
In Borden v. United States, 593 U.S. 420, 429 (2021) the Supreme Court had held that a COV “demands that the perpetrator direct his action at, or target, another individual”, and because “[r]eckless conduct is not aimed in that prescribed manner,” it does not satisfy the element.
In a 2024 decision, a Ninth Circuit panel in U.S. v. Gomez held that PC 245(a)(1) (assault with a deadly weapon) is not a COV under Borden, noting that because “California’s assault statute sweeps in reckless uses of force, as defined in Borden, a conviction under § 245(a)(1) is not a categorical match with the elements clause and does not constitute a crime of violence.” See U.S v. Gomez, 115 F.4th 987, 996 (9th Cir. 2024), reh’g en banc granted, opinion vacated, 133 F.4th 1083 (9th Cir. 2025). That Ninth Circuit vacated the opinion to rehear the case en banc.
In the en banc decision, the Ninth Circuit again held that 245(a)(1) is not a COV, because it can involve criminal negligence. See U.S. v. Gomez, — F.4th –, No. 23-435, 2026 WL 90274, at *7 (9th Cir. Jan. 13, 2026) (en banc). The court noted that California uses the term “recklessness” in 245(a) in its historical sense as a synonym for criminal negligence. Id. at n. 7. See also People v. Wright, 100 Cal. App. 4th 703, 712 (Ct. App. 2002) (Williams “defined the mental state by a negligence standard.”); People v. Rainville, A143179, 2017 WL 712603, at *3 (Ct. App. Feb. 23, 2017) (The mens rea for assault is merely a “species of negligent conduct.”). For that reason, it reaffirmed that PC 245(a)(1) is not a COV.
The analysis in Gomez ought to apply to all sections of Pen C § 245(a), as the mens rea requirement for the section is consistent. See CALCRIM 875. The court overruled prior decisions that had held 245(a) to be a COV, such as U.S. v. Vasquez-Gonzalez, 901 F.3d 1060 (9th Cir. 2018), U.S. v. Jimenez-Arzate, 781 F.3d 1062 (9th Cir. 2015), because they were in conflict with the Supreme Court’s decision in Borden, which set out a more expansive definition of recklessness. See Gomez, supra, at *7. (Both Borden and Gomez considered a federal sentencing definition of COV that is identical to 18 USC § 16(a) regarding an offense against a person, U.S. Sentencing Guidelines (U.S.S.G. § 4B1.2(a).)
However, the Government could file for a writ of certiorari with the Supreme Court within 90 days of the January 13, 2026 decision. Therefore, criminal defenders must assume that a conviction for Pen C § 245(a) is a COV until the law is more settled, while immigration advocates can argue that no conviction under Pen C § 245(a) is a COV.
The government has 90 days after the decision to seek cert at the U.S. Supreme Court. For now defenders should act conservatively and treat 245(a) as a COV: they should avoid a year or more imposed, and a DV-type victim. Removal defense advocates should use Gomez.
To avoid a plea to a COV, consider PC 32, 136.1(b)(1), 236/237, 243(a), 243(e), 591, 594, or PC 69, 148. Note that PC 32, 136.1(b)(1), 69, and 148 must get 364 days or less, which includes any time added for a PV, to avoid becoming an AF as “obstruction of justice.”
If a strike is needed, along with 136.1(b)(1) and 460(s), consider 207. For longer sentences, consider 244 or 136.1(b)(1) as subordinate felonies, with an 8 month sentence to prevent them from becoming AFs.
Burglary 1st and 2nd can be a good plea but if D was not admitted into the U.S. it will trigger mandatory ICE detention. See below.
Crime of DV. Because the Ninth Circuit held that 245 is not a COV, it is not a deportable crime of DV either. But if this issue goes to the Supreme Court, the COV finding could change. To protect your client in case that happens:
-Plead to an immigration COV against a specific V without protected status (e.g., neighbor, police, ex-wife’s new boyfriend). A COV against a non-protected V is not a crime of DV. For a serious charge PC 245 is a good option; hopefully the Supreme Court will not reverse Gomez, and arguably it is not a CIMT. See other alternatives to COVs above. But even if the offense is a COV, it will not be a crime of DV if there is no protected relationship. Get 364 days or less imposed on each count of a COV. Or:
-Plead to a non-COV, such as those discussed above, against a V with protected status. Recall that PC 32, 136.1(b)(1), 69, 148 need 364 days or less.
-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, on DV grounds see ILRC, 2022 Update: The Domestic Violence Deportation Ground at www.ilrc.org/crimes-summaries.
Misd is a “significant misdemeanor” for DACA if committed against DV-type victim, but PC 1203.4 might eliminate. See PC 25400.
Mandatory Detention. People not admitted to U.S. are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.
SB54: Law enforcement is permitted to cooperate with ICE indefinitely for felony 245 convictions and 5 years for misdemeanor convictions. See SB 54 advisory at www.ilrc.org/crimes-summaries.