Offense
Violation of a Protection Order (misdemeanor)
Aggravated Felony (AF)
273.6(a), (b), (c) are not AFs as COV.
Among other reasons, a misdo has a maximum 180 or 364 day sentence
Crime Involving Moral Turpitude (CIMT)
273.6(a) and (c) should not be held CIMTs because they can be committed by minor, technical violations without threat or harassment (altho they may cause deportability under the DV ground; see next column).1As an example of a minor violation that should not be held a CIMT, see Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009) (violation of a DV “stay away” order based on walking a child halfway up the driveway after visitation rather than leaving him at the curb as agreed). While that should not be a CIMT, it was held a deportable judicial finding of a violation of a DV protective order.
Authorities might hold 273.6(b) a CIMT because it requires injury. Counsel should try to avoid it or at least create a careful record of conviction. See Advice.
Other Removal Grounds
DV deportation ground. 273.6(a)-(c) is a deportable judicial finding of a violation of a DV protection order, if the order was pursuant to Cal Fam C 6320, 6389 or otherwise a stay-away or similar order protecting against threats, injury, or repeat harassment of a DV relation.
To prevent this admit violation of a specific order or portion of an order that is not a DV stay-away provision. A vaguely phrased order will not protect the person. The categorical approach does not apply here, so ICE can use any evidence to show that the finding of violation of an order related to a violation of a DV stay away order.
See Advice for alternatives such as PC 166(a)(1)-(3), plea to a new offense, or plea to violation not related to a DV stay-away order.
Advice and Comments
PC 273.6(a)-(c). See further discussion at PC 166
PC 273.6(b) as a CIMT. Defense should avoid (b) if avoiding a CIMT is important. While there is no precedent, immigration authorities may hold 273.6(b) a CIMT because it requires intentional conduct (violating the order in any way) that results in injury. If (b) can’t be avoided, try to create a record showing that the injury was not intended and was accidental or caused by negligence or recklessness, which is not a CIMT.2Negligent conduct never is a CIMT, and reckless conduct is a CIMT only if the offense has as an element conscious disregard of a known risk of imminent death or serious injury. Matter of Leal, 26 I&N Dec. 20 (BIA 2012). Section 273.6(b) does not require that mens rea. Or, if possible, given the record, identify the victim as a co-habitant. The Ninth Circuit held that 273.5 is not a CIMT if V is a cohabitant,3See Morales-Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009) and discussion at PC § 273.5. and arguably that applies to 273.6(b).
Deportable DV finding. For further discussion see PC 166, this endnote4Defenders should assume that a noncitizen is deportable under 8 USC § 1227(a)(2)(E)(ii) if a civil or criminal court finds that they violated in any way a portion of a DV order (probation requirement, family court order, etc.) intended to protect against threats, injury, or repeat harassment. The violation must be after admission and after 9/30/96.
Courts have held that a finding of violation of a DV “stay away” order based on minor conduct, including walking a child up the driveway after visitation rather than leaving him at the curb, will suffice to trigger deportability. See Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009), Matter of Strydom, 25 I&N Dec. 507 (BIA 2011). The test is whether the conduct violated the portion of the order that was intended to protect against threat, injury, or repeat harassment—not whether the conduct itself involved threat or harassment.
Immigration authorities can use any probative evidence, including from outside the record of conviction, to establish that a court’s finding of a violation of an order was in fact a finding 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.” While the Ninth Circuit first had held that the categorical approach applies to this inquiry and that Pen C 273.6 is a divisible statute, it reversed itself in 2019 in deference to the BIA’s finding that the categorical approach does not apply to this part of the domestic violence deportation ground (8 USC 1227(a)(2)(E)(ii), as opposed to (E)(i)) even if it involves a criminal conviction, since this part of the ground also includes a finding of a violation by a civil court judge. See Diaz-Quirazco v. Barr, 931 F.3d 830, 841 (9th Cir. 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 should not rely on a vague record of conviction under Pen C §§ 166(a)(4), (b) or 273.6 to protect the defendant. Do not plead to any DV stay-away violation. One can plead to violating a specific part of the DV order or conditions of probation that would not cause deportability, such, as e.g., conduct relating to custody, visits, child support, probation appointments, or failure to attend classes. A plea to Pen C § 166(a)(1)-(3) should be safe. Or, plead to a new, non-deportable offense with an ROC sanitized of the PO. If pleading to a new offense, it is optimal to identify a victim not listed in the order (e.g., the new boyfriend, the neighbor), although this might not be necessary., and ILRC, Case Update: Domestic Violence Deportation Ground (March 2022) at www.ilrc.org/crimes.
A finding of even a technical violation of a DV stay-away order (e.g., walking child up the driveway rather than leaving them at the curb after visitation) can trigger deportability under INA 237(a)(2)(E)(ii). See PC 166 for further discussion.
If you must plead to 273.6 involving a DV relationship, some options are:
-Plead to a specific violation of an order that does not meet this definition, such as failure to pay child support, follow visitation times, attend classes; miss probation meeting; or
-Plead to misconduct with a judge,166(a)(1)-(3); or
-Plead to a new offense that does not involve violation of any order, e.g., PC 415, 370, trespass, 236/237, 243(a) or (e), 136.1(b)(1), 459, 594, etc. While it’s optimal to sanitize the record of a charge of violating an order, and/or identify a V not listed in the order or a victimless crime, if that is not possible, still plead to any non-deportable offense.