Misdemeanor Domestic Violence Conviction Arguably is not a ‘Crime of Violence’ for Deportation Purpo

An Immigration Judge in Arizona recently terminated a deportation proceeding based on domestic violence-related misdemeanor convictions after concluding that the convictions were not “crimes of violence” under the Immigration and Naturalization Act (INA).

The INA describes various types of criminal conduct that can render an alien deportable. This list which was greatly expanded by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 includes convictions for domestic violence.

An alien charged with being deportable in an Arizona case was convicted of “misdemeanor assault / domestic violence” and of “misdemeanor disorderly conduct / domestic violence” under state law. The Immigration and Naturalization Service (INS) then sought his deportation, charging that the defendant was deportable under the domestic violence provision of INA §237(a)(2)(E)(i). This section defines a “crime of domestic violence” as any “crime of violence” committed against a person in one of several listed relationships with the perpetrator, e.g., a current or former spouse. “Crime of violence,” in turn, is defined by another federal provision (18 U.S.C. §16):

(a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The respondent in the Arizona case argued that he could not be deported under the INA domestic violence ground for deportation because neither of his misdemeanor convictions met the federal statute’s definition of “crime of violence.” According to the Board of Immigration Appeals, the federal definition the classification described in the INA’s deportation provisions supersedes the state law definition to avoid inconsistent results for aliens similarly situated.

Specifically, in the Arizona case respondent argued that subpart (b) of the federal definition of “crime of violence” did not apply to his case because the offenses to which the defendant pleaded guilty were misdemeanors, not felonies.

The respondent also argued that subpart (a) did not apply to him because the domestic violence provision required the “use, attempted use, or threatened use of physical force” directed against a statutorily protected victim – elements not required for either of his misdemeanor state convictions. Essentially, the Arizona domestic violence laws under which the respondent was convicted were broader in scope than the INA definition, because they could have allowed the prosecution of acts that did not involve attempted physical force or disorderly conduct directed to a victim. Evidence of misdemeanor domestic violence convictions under state law alone did not clearly and convincingly demonstrate that the respondent had actually committed the federally-defined domestic violence that renders a person deportable.

The Immigration Judge held that the INS failed to prove that the defendant actually committed domestic violence as defined by the INA (that is, he used or threatened physical force) in the incident for which he had been convicted under Arizona law. The judge then terminated the defendant’s deportation proceedings and ordered immediate release from INS custody.