Violation of protective order
Aggravated Felony (AF)
Crime Involving Moral Turpitude (CIMT)
Should not be held CIMT because minimum conduct is not.
Other Removal Grounds
Deportable as a violation of a DV protection order if there is evidence, including from outside the ROC, showing that the violation was pursuant to Cal Fam C 6320, 6389 or otherwise violated a DV stay-away or similar DV order.
The categorical approach does not apply here, so ICE can use any evidence to show that the finding related to a violation of a DV stay away order.
Advice and Comments
Deportable DV finding. A finding of even a minor 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.
In 2019 the Ninth Cir withdrew prior opinions and deferred to the BIA to hold that ICE can use evidence from outside the ROC to prove that a court’s finding of violation of an order pertained to a violation of a portion of a DV protective order meant to protect against threat, injury, or repeat harassment. Such a civil or criminal court finding causes deportability. Counsel should 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 counseling; or could plead to misconduct with a judge (see PC 166(a)(1)-(3)). Or, plead to a new offense that does not involve violation of any order (see pleas suggested at PC 273.5), where the ROC is sanitized of any mention of an order. For best protection, the new offense should be against a V not listed in the order or be a victimless crime, but if that is not possible, plead to any non-deportable offense.
For further discussion and citations, see this endnote1Defenders 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.) that protects 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). They emphasize that the test is violating the portion of the order violated 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 violation of an order is actually 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.” The Ninth Circuit earlier had held that the categorical approach applies to this inquiry and that Pen C 273.6 was a divisible statute. In July 2019 it reversed itself in order to defer 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)), since this part of the ground involves a finding of a violation by either a civil or criminal court judge. See Diaz-Quirazco v. Barr (9th Cir. July 23, 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).
This makes mandatory the existing advice that defense counsel should not rely on a vague record of conviction under Pen C §§ 166 or 273.6 to protect the defendant. Do not plead to any DV stay-away violation. One can plead to violating a part of the DV order that would not cause deportability, such, as e.g., conduct relating to custody, visits, child support, 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 see ILRC, Case Update: Domestic Violence Deportation Ground (Nov. 2019) at www.ilrc.org/crimes.