Offense
Inflict Spousal Injury
Aggravated Felony (AF)
Get 364 days or less on any single count to avoid AF as a COV.1See, e.g., Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1055-56 (9th Cir. 2010); U.S. v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) holding that § 273.5 is a deportable crime of domestic violence. Advocates may investigate arguments that § 273.5 can be committed by an offensive touching and thus is not a COV, an uphill battle. See § N.4 Sentence.
Imm counsel may try to contest the COV designation
Crime Involving Moral Turpitude (CIMT)
Ninth Circuit held not CIMT if V is former co-habitant,2Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009); Cervantes v. Holder, 772 F.3d 583, 588 (9th Cir. 2014) (“Our precedents make clear that although § 273.5(a) is not categorically a CIMT, it is a divisible statute for which a conviction under one portion of the statute (corporal injury against a spouse) will qualify as a CIMT, while conviction under other subsections (for example, corporal injury against a cohabitant) will not.”) but see Advice for suggestions of better pleas for avoiding a CIMT.
Other Removal Grounds
Yes, deportable crime of DV (even if V is a former co-habitant).
Advice and Comments
273.5 always is a deportable crime of DV,but might avoid being a CIMT.
To avoid COV and DV, see PC 32, 136.1(b)(1), 69, or 148 (with 364 days or less); 236/237, 243(a), 243(e), 459 1st or 2nd, 591, 594; do not plead to 243(d) or 422; check for updates on PC 245(a)(1). D can accept batterer’s program, stay-away order, and other probation conditions on these. (But a subsequent judicial finding of violating a DV stay-away order will make D deportable; see 273.6.)
Removal defense advocates can consider arguments that 273.5 is not a COV, and thus not a crime of DV or aggravated felony. See discussion at PC 245.
CIMT.The Ninth Circuit held that 273.5 is not a CIMT if V is a “cohabitant” and the statute is divisible, so if possible plead specifically to co-habitant or ideally former co-habitant. More secure pleas to avoid a CIMT include 136.1(b)(1), 236, 243(a), (e), 459, 591, 594.
But in analyzing past 273.5 convictions, do not assume that it is a CIMT even if the plea stated that the spouse was the victim. Arguably 273.5 is not divisible between victim types, and therefore no conviction is a CIMT.3Section 273.5 is divisible only if, in order to find the defendant guilty, in every case a jury must unanimously agree as to the type of relationship. (See ILRC, How to Use the Categorical Approach Now (2021) for more information.) Immigration advocates can explore arguments that § 273.5 is not divisible as to the type of relationship. CALCRIM 840 does not require unanimity as to the type of relationship, and there do not appear to be state cases holding that this is required. A Ninth Circuit panel held that § 273.5 is divisible (Cervantes v. Holder, 772 F.3d 583, 588 (9th Cir. 2014)), but Judge Bybee did not undertake any divisibility analysis based upon elements and the requirement of jury unanimity. After Cervantes was published, the Supreme Court made it even more clear that this must be undertaken in order to establish whether a statute is truly divisible. See discussion of Mathis v. United States, 579 U.S. 500, 518 (2016) and the categorical approach a at ILRC, How to Use the Categorical Approach Now (2021). Immigration advocates should assert this argument as needed. Remember that this argument only goes to CIMTs; 273.5 still will be found a COV and crime of DV.
Misd conviction is a “significant misdemeanor” for DACA, but 1203.4 might erase it; see note at PC 25400.