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, but has failed in the past.
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
To avoid COV and DV, see PC 32, 243(a), (e); 236/237; 136.1(b)(1); 459, 591, 594, and others; do not plead to 243(d). 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.)
CIMT. Ninth Cir held that this is not a CIMT where V is “cohabitant” but best practice is to not rely on this if it is necessary to avoid a CIMT, since the BIA has not yet spoken and the Ninth could withdraw.3The Ninth Circuit states that it will defer to a “reasonable” precedent BIA decision as to what conduct constitutes a CIMT, including withdrawing its own prior precedent. Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). It is possible that in the future BIA might publish a decision finding that § 273.5 is a CIMT even if the victim is an ex-cohabitant, and the Ninth Circuit might defer. A California court held that § 273.5 always is a CIMT for state purposes, despite Morales-Garcia, but this is not binding for immigration purposes. See People v. Burton (2015) Cal. App. 4th Dist. Dec. 18. More secure pleas to avoid a CIMT are, e.g., 136.1(b)(1), 236, 243(a), (d), (e), 460, 591, 594, etc. If pleading to 273.5, plead to co-habitant or dating or ideally former co-habitant.
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.4Section 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 Categorical Approach Advisory 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, 136 S.Ct. 2243, 2256 (2016) and the categorical approach at n. 4, above.
Misd conviction is a “significant misdemeanor” for DACA, but 1203.4 might erase it; see note at PC 25400.