Domestic violence is a serious problem for our country. Domestic violence perpetrators inflict significant harm on their partners and are more likely than other violent offenders to be re-arrested for violent offenses against the original victim.5 There are several reasons for this high level of recidivism. According to a 2004 Canadian study analyzing recidivism in domestic violence arrests, substance abuse and financial and economic instability were some of the factors that led to higher recidivism rates among domestic violence perpetrators.6 Also, a study conducted in Federal Probation found that 41 percent of domestic violence perpetrators that were assigned to domestic violence counseling and probation reoffended before the end of their twenty-four-month probation term.7 This study also found that domestic violence counseling has had limited success in deterring domestic batterers.8
However, despite the harm domestic violence perpetrators inflict on our society, our laws do not hold domestic violence perpetrators accountable for their actions. Specifically, in the immigration context, many who have been convicted of domestic violence crimes are not removable from the United States, and some are allowed to garner significant immigration benefits.9
Domestic violence perpetrators are allowed to escape the immigration consequences of their convictions and garner immigration benefits. This is due to differences in state domestic violence statutes and federal definitions of crimes of violence and domestic violence.10 To be removable, a state conviction must match the federal definition of a crime. Courts compare these statutes to ensure that their elements match.11 Courts use a categorical approach to determine whether convictions match and whether the state conviction carries immigration consequences.12
If the statute does not categorically match the federal definition, courts utilize a modified categorical approach. This approach considers a limited number of court documents in the record of conviction to determine if the state conviction matches the federal definition for a certain offense.13 However, this current system of matching statutes to federal definitions does not guarantee that domestic violence perpetrators and the domestic violence crimes they commit are removable offenses or bars to certain immigration benefits.
Currently, there is a problem in our federal immigration system: Violent domestic violence perpetrators are not removable for their acts of domestic violence. The categorical and modified categorical approaches focus on the elements of a statute, not the stories of the victims and the actual harm that they suffer. Oftentimes, police reports are not relevant in immigration proceedings when determining the severity of a crime.14 Sadly, these reports are often the only time that the story of a victim can be heard and the only statement that can demonstrate the severity of the crime committed.
This paper will explore domestic violence laws and how they are viewed in the context of federal immigration law and the Immigration and Nationality Act (INA). Part I will discuss current domestic violence laws and how states have attempted to take action against domestic violence perpetrators, specifically California’s presumption against an award of child custody to a parent who has committed an act of domestic violence. Part II will discuss federal immigration law and how certain domestic violence crimes render aliens in removal proceedings removable from the United States or ineligible for certain immigration benefits, while other crimes do not. Part II will also analyze various crimes that bar immigration relief and their definitions under the INA and discuss established presumptions regarding criminal convictions, specifically the presumption that certain drug trafficking crimes are bars to immigration relief.
Part III will discuss how federal definitions and state criminal statutes are compared using the categorical and modified categorical approach, how this has affected domestic violence statutes, and how they are applied in immigration proceedings. Part IV will offer a solution to the present problem in immigration law regarding domestic violence convictions and advocate for a presumption for certain domestic violence crimes as offenses that render an alien who commits them removable or ineligible for certain forms of immigration relief. Part IV will also advocate that the present categorical and modified categorical approach be abandoned when analyzing domestic violence crimes and a real-world conduct approach be used in immigration proceedings. This real-world conduct approach will determine whether a domestic violence crime is a removable offense in immigration proceedings or should bar certain immigration benefits.
I. Domestic Violence: Presumption Against Child Custody for Domestic Violence Perpetrators
Domestic violence statutes have not always been protective of victims. In fact, for several decades, the laws were hands off in the domestic violence context.15 Domestic violence was not considered a crime or codified in statutes.16 Domestic violence was considered normal and something that women should tolerate.17 Police did not intervene and tended to ignore calls for help from victims.18 Police viewed domestic violence as a personal issue between married couples and were hands off until domestic violence was codified in law.19 After domestic violence was codified in law, the private nature of this harm became a public concern.20 In recent years, police have become the first responders on domestic violence calls.21 Arrests and prosecutions have increased as societal views of domestic violence have changed.22
As views of domestic violence changed and laws were enacted to protect domestic violence victims, views on child custody evolved as well.23 Prior to the 1970s, parental morality was the focus of child custody decisions.24 In the 1950s and 60s, the courts often found that the best interest of the child was for the parents to sacrifice their own happiness to provide for the child.25 In the 1970s, this evolved to making sure that the parents were happy, and if not, then divorce was preferable for the best interest of the child.26 The 1980s saw an emergence of joint custody and gender-neutral child custody determinations.27 Since then, the best interest of the child has been the standard for determining child custody.28 Many states have created laws to protect the best interest of the child.29 Specifically, California enacted Family Code §§ 3011 and 3044 in 1993.30 These statutes31 create a “rebuttable presumption that an award of legal or joint custody to a parent who perpetuated domestic violence is detrimental to the best interests of the child.”32 This presumption is applied when a parent committed an act of domestic violence against a spouse within the past five years.33 This presumption is determined by weighing several factors, including:
1) Whether the perpetrator has demonstrated that giving sole or joint custody . . . is in the best interests of the child. 2) Whether the perpetrator has successfully completed a batterer’s treatment program. . . . 3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate. 4) Whether the perpetrator has successfully completed a parenting class. . . . 5) Whether the perpetrator is on probation or parole and whether he or she complied with the terms and conditions of probation. 6) Whether the perpetrator is restrained by a protective order or restraining order and whether he or she complied with its terms. 7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.34
II. Immigration Law and Crimes of Domestic Violence
The Immigration and Nationality Act (INA) provides that certain crimes render an alien removable from the United States, while others bar an alien from eligibility for certain immigration benefits.35 There are several categories of removable offenses enumerated in the INA, as well as offenses that render aliens inadmissible to the United States.36 Domestic violence crimes are one of these categories along with a litany of others, including drug crimes and many felonies.37
The INA addresses domestic violence crimes, under the federal definition of crimes of domestic violence.38 There are two types of domestic violence crimes enumerated in the INA: (1) crimes of domestic violence and (2) violation of a protective order.39 Crimes of domestic violence and violations of protective orders are removable offenses and render undocumented aliens and legal permanent residents subject to immigration removal proceedings.40 Depending on the length of sentence imposed, some crimes of domestic violence are considered aggravated felonies.41
A crime of domestic violence means “any crime of violence as that defined in 18 U.S.C. 16 that is committed by a specified person against one of a defined set of victims.”42 A crime of violence is defined two separate ways under federal law.43 The first is that the “offense that has as an element the use, attempted use, or threatened use of physical force against the person.”44 The second is “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person . . . may be used in the course of committing the offense.”45 A crime of domestic violence also requires the victim to have a specific relationship to the accused and it to be a crime of violence.46 The person must be (1) a current or former spouse, (2) a person who shares a child in common, (3) an individual cohabitating with the person as a spouse, and (4) an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction.47
Under current immigration law, some domestic violence perpetrators who have been convicted in a state court are found to not have been convicted of a removable offense.48 In other words, certain aliens who have been convicted of a crime of domestic violence are found to be improperly in immigration proceedings because their domestic violence conviction is not a removable offense.49 In these instances, the alien’s removal proceedings are terminated and he or she is allowed to stay in the United States.50
Some domestic violence perpetrators are allowed to seek immigration relief. In fact, depending on the type of conviction, these perpetrators are eligible for legal permanent resident status.51 As stated above, unless an alien is convicted of an enumerated aggravated felony or particularly serious crime, he or she is allowed to seek all forms of immigration relief.52
The current situation in immigration law related to domestic violence crimes leads to questionable results. While a criminal who commits an act of domestic violence may not be removable or barred from immigration relief, a criminal who violates a protective order, in any way, is removable from the United States. What’s more questionable is that domestic violence perpetrators take away opportunities for undocumented aliens who have not committed any crimes to receive certain immigration benefits.53 Specifically, in the case of cancellation of removal, only a certain number of applications can be granted each year.54 This means that someone who has not committed a crime may not be offered a grant of permanent resident status under this program because a domestic violence perpetrator was granted his application before him or her.
III. Determining Whether a State Criminal Conviction Is a Removable Offense or Bar to Immigration Relief
In order to determine whether a crime is a removable offense or a crime that bars immigration relief, courts are tasked with comparing state criminal statutes to federal definitions of crimes to determine if the state statute is within the federal definition of a crime.55 This is a difficult task. This process involves two conflicting ideals: (1) the law enforcement objectives of the government in removing violent and dangerous people and (2) the rights of people in immigration proceedings to ensure that their due process rights are upheld.56 In the criminal context, the importance of ensuring state statutes meet federal definitions is apparent.57 If a state crime does not meet the federal definition of a crime, a defendant spends less time in jail.58 This can also frustrate law enforcement, where an otherwise dangerous person could spend less time in jail even though he committed a serious crime that harmed people or property.
A. Categorical Approach
In order to determine whether a state statute matches a federal definition, courts have long applied a categorical approach.59 The categorical approach looks to the statutory definition of the offense.60 The court does not take into account the facts of the case or any other documents on the record, and only determines if the state statute matches the federal statute.61
This approach requires the comparison of the elements of a state statute and its federal definition counterpart.62 In some instances, the state statute and federal definition have the same essential elements or the federal definition is broader than the state definition.63 When this occurs, there is no further inquiry needed because the state statute matches the federal definition or its elements are within the “generic definition” of a federal crime.64 However, when the federal definition and state law have differences, or the state definition of a crime is broader than the federal definition, the court must look further.65
The court then must determine if the elements of the state crime are broader than the federal definition.66 If the state statute is broader, then the court must find that the state statute is not a match with the federal definition because it is broader than the federal definition.67 In other words, the state statute criminalizes conduct that is not a part of the federal definition.68 This means that the perpetrator of a state crime would not have been found guilty under the federal definition because the jury, or judge, would not have needed to find an essential element of the state crime in order to convict the perpetrator.69
B. Supreme Court Application of the Categorical Approach in Immigration Law
The Supreme Court has long utilized the categorical approach in criminal and immigration contexts.70 In Moncrieffe v. Holder, the Court used the categorical approach to determine if a criminal conviction was an aggravated felony and a bar to immigration relief.71 Justice Sonya Sotomayor, writing for the majority, held that the conviction of the petitioner, namely a possession with intent to distribute conviction, was not an aggravated felony under the INA.72 She noted that the alien’s actual conduct is irrelevant to the inquiry, “as the adjudicator must presume that the conviction rested upon nothing more than the least of the acts criminalized under the state statute.”73 The Court pointed to many instances in the past that utilized the categorical approach in immigration proceedings and its long-standing history.74
The Court held that the Georgia statute for possession with intent to distribute was not an aggravated felony because there was no evidence that a felony drug trafficking offense under the Controlled Substances Act (CSA) involved a small amount of marijuana.75 Because the petitioner was convicted of a misdemeanor and the CSA would not punish the Georgia statute as a felony, it was not an aggravated felony under the federal definition of a drug trafficking offense.76
Justice Alito issued a dissenting opinion that called into question the Court’s default use of the categorical approach.77 He argued that while well intentioned, the categorical approach has led to results incompatible with Congress’s objectives, especially in regard to the INA.78
Justice Alito did not agree that the petitioner should be found to have committed an aggravated felony.79 He believed that the petitioner had not committed an aggravated felony due to the small amount of marijuana that he had.80 He concluded, however, that the Court did not apply a pure categorical analysis and instead had departed from it to achieve this result.81
He acknowledged the difficulty of making federal law dependent on state convictions and the sometimes harsh results that come from a categorical inquiry.82 However, he reasoned that under a pure categorical approach, the petitioner would have been convicted of an aggravated felony because the essential elements of the Georgia statute, namely knowledge, possession of marijuana, and the intent to distribute, are in the federal definition of drug trafficking and therefore are a match with the state statute of conviction.83
Justice Alito reasoned that the Court’s decision that the petitioner’s conviction was not an aggravated felony was not supported by the language of the INA.84 He reasoned that the INA sought to punish conduct, not convictions.85 If conduct was punishable as a felony under the CSA, then it was a felony under federal law and the INA.86
Justice Alito suggested the Court apply a different approach to ensure more just results and that the categorical approach was not the be all and end all approach.87 Justice Alito articulated how the pure categorical analysis frustrates what Congress intended by leading to varying results.88 In fact, he noted the anomaly that the Court’s decision, using the categorical approach, would create: Some state convictions would render an alien removable and other similar state statutes, criminalizing the same behavior, would not be removable.89 Some state crimes are defined so broadly as to encompass both very serious and much less serious conduct.90
Justice Alito suggested the Court apply a real-world conduct, or conduct-specific approach, in order to avoid the unintended results of the categorical approach.91 Because the INA was drafted to “identify categories of criminal conduct that evidence such a high degree of societal danger that an alien found to have engaged in such conduct should not be allowed to obtain permission to remain in this country,”92 the Court should look to other ways to identify these crimes.93 Justice Alito argued that in cases where “the state conviction at issue was based on a state statute that encompasses both a substantial number of cases that qualify under the federal standard and a substantial number that do not,” it is appropriate to consider the facts that were admitted in a state court, or were clearly proved.94 Alito also illustrated how this approach would allow the Court to consider relatively minor offenses under a statute and more serious crimes under a statute to determine if they were aggravated felonies or involved conduct that fell into a category of minor offenses that were not as serious.95
C. Modified Categorical Approach and Its Application
After applying the categorical approach, if the state and federal statutes do not match or the elements are not the same, a modified approach is taken.96 The modified approach allows courts to consider certain documents based on the conviction.97 The documents are limited and include “the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or transcript from the plea proceeding.”98 Even at this stage, however, the specific facts of the underlying offense are not considered.99 The police report and other testimonial evidence outside the record of conviction or specific facts are not considered.100
The Board of Immigration Appeals101 and various courts of appeals have applied the modified categorical approach to varying results.102 In the case of domestic violence crimes, the modified categorical approach has found on numerous occasions that convictions under state domestic violence statutes are not crimes of domestic violence under the INA.103
Domestic violence statutes that do not require a violent act are not considered crimes of domestic violence.104 In Matter of Velasquez, the BIA held that because a Virginia statute did not require a “violent act,” the crime was not a crime of domestic violence, even after an analysis of the relevant criminal statute.105 The court reached this conclusion despite the fact that the petitioner was convicted of harming his girlfriend, given conditions for his release, and given a no-contact order.106
Domestic violence statutes that only require negligence or recklessness are not considered crimes of domestic violence.107 In fact, recklessness is not enough to make a domestic violence crime a crime of violence.108 The Ninth Circuit held that because an Arizona statute permitted a conviction for domestic violence when a defendant “recklessly but unintentionally causes physical injury to another” and the record of conviction did not demonstrate the petitioner intentionally caused injuries to the victim, the crime was not a crime of violence for purposes of removal in immigration proceedings.109
Some domestic violence laws are not removable offenses because the statute and criminal records do not make the crime a crime of moral turpitude110 or crime of domestic violence.111 In the BIA case of In re Sanudo, the BIA held that that a conviction under California Penal Code § 243 was not a crime of moral turpitude or crime of domestic violence.112 The court reasoned that because the statute did not require actual infliction of injury, the crime was not a crime of violence as defined in federal law.113 Because a petitioner could be convicted for an intentional touching under the statute, it encompassed more conduct than the federal definition of a crime of violence and therefore was not a qualifying conviction.114 The court also noted that the crime of domestic violence did not have the aggravating factors that were usually necessary for determining that a crime was so reprehensible as to be considered a crime involving moral turpitude.115
In applying the modified categorical approach, the court only considered certified copies of the criminal complaint, the plea agreement, and the criminal judgment.116 In looking at these documents, the court did not find that they demonstrated that the requisite infliction of harm was required in proving a conviction under California Penal Code § 243.117 The court did not consider the police report, which was a part of the conviction record. The court reasoned that because “there [was] no indication that [the police report] was incorporated into the charging instrument under the convicting state’s rules of criminal procedure,” it was “not admissible to prove the nature of the respondent’s conviction.”118
D. Cisneros Perez v. Gonzalez: How a Domestic Violence Perpetrator Garnered Eligibility for Immigration Relief
As discussed above, the current system of using the categorical and modified categorical approaches not only has allowed domestic violence perpetrators to escape removal, but has allowed them to gain lawful permanent resident status. The Ninth Circuit case of Cisneros Perez v. Gonzalez illustrates this problem all too well and demonstrates the real-world consequences of our current system.119
Cisneros Perez married his wife Megali Garcia, a lawful permanent resident.120 Perez entered without inspection and was an undocumented alien.121 After having two kids, he was accused of many crimes, notably crimes of domestic violence against his wife, under California Penal Code §§ 243(e)(1), 273.5, and 591.122 Perez pled guilty to simple battery under California Penal Code § 242 and the original three charges against him were dropped.123 Perez was sentenced to three years of probation, thirty-eight days in jail, time served, and one year of domestic violence counseling, as well as substance abuse and parenting counseling.124
After being placed in removal proceedings, Perez applied for cancellation of removal for certain nonpermanent residents.125 The immigration judge found Perez ineligible for cancellation of removal for certain nonpermanent residents because he had been convicted of a crime of domestic violence.126 The immigration judge based this holding on Perez’s criminal complaint and judgment of record.127
On appeal, the Ninth Circuit found insufficient documents to establish that Perez was found guilty of a crime of domestic violence under the INA.128 The court held that the conviction documents on record were insufficient to demonstrate Perez was found guilty of a crime of domestic violence.129 Even though the administrative record of the immigration proceedings indicated that Megali Garcia was Perez’s wife, the court declined to use this information because the name of the spouse was not listed in the criminal complaint and the complaint was withdrawn when Perez pled to a lesser charge.130 The court only considered Perez’s plea, which was not to a crime of violence, but rather a simple battery.131
The court held that conviction documents must be such that “a later court could generally tell whether the plea ‘necessarily’ rested on the fact identifying the crime of conviction as the generically defined crime.”132 For this reason, under the modified categorical approach, the court found there were insufficient documents on record to find that the respondent was guilty of a crime of domestic violence.133 Even though Perez was charged under several domestic violence statutes, the conviction record did not demonstrate that Perez pled to a domestic violence crime.134 Furthermore, even though Perez was sentenced to domestic violence counseling and a stay away order was issued, the court found this still did not demonstrate Perez was guilty of a crime of domestic violence.135 The court reasoned that because California does not forbid these forms of punishment for other nondomestic violence crimes, Perez’s sentence alone did establish that he committed a crime of domestic violence.136
IV. Proposed Solution
The time is now for a new approach to domestic violence convictions and how they are addressed in federal immigration law. In fact, this sentiment is held by two Ninth Circuit Appeals Court judges.137 In a recent Ninth Circuit decision, Menendez v. Whitaker, the Ninth Circuit held that a conviction under California Penal Code § 248, for lewd and lascivious acts with a minor, was found not to be a crime of child abuse.138 In a concurring opinion, Justice Callahan and Justice Owen expressed concern over the current use of the categorical approach.139 The court went so far as to implore Congress or the Supreme Court to fix the current system.140 The court argued that the current system focuses on the breadth of a given statute that no state legislator ever intended.141 The actual criminal conviction has nothing to do with the analysis of the court, and the present system forces the parsing of state statutes that lead to uneven results.142
The Ninth Circuit’s approach has been the most effective at combatting the problem, and the time has come for a new approach to determine whether state convictions carry federal immigration consequences for domestic violence crimes. There are countless examples of domestic violence perpetrators being given immigration benefits despite their record of domestic violence, as well as domestic violence perpetrators not being subject to removal from the United States.
The cases discussed above demonstrate unintended consequences of applying the categorical approach to domestic violence crimes. Under the categorical approach, courts do not take into account the severity of the domestic violence crimes that are before them. Courts do not discuss the underlying facts of a crime or the severity of the harm that was committed against a victim. The courts instead compare the elements of a statute to determine if a domestic violence crime was committed.
The above-mentioned cases demonstrate that each petitioner was found guilty of a violent crime and committed acts of domestic violence. They were convicted in courts of law for harming their spouses or significant others. While it is true that the statute they were convicted under or pled to might not have fit the exact federal definition of a crime of domestic violence, the facts of the case, and what actually happened, paint a different picture. Facts uncovered during immigration proceedings and present in police reports demonstrated, in some instances, that a petitioner committed an act of domestic violence. However, the court rejected these facts as evidence outside the record of conviction.
The fact that domestic violence perpetrators are able to garner immigration benefits and escape the immigration consequences for their acts of domestic violence is an issue that must be resolved. This issue must be resolved to protect victims and hold perpetrators accountable for their actions. It is also important to ensure the integrity of our immigration system and to ensure that well-deserving immigrants are afforded the opportunity to garner immigration benefits that they deserve.
There are several ways that our government, including the Executive Branch, through the Attorney General, and the Judicial Branch, through the Supreme Court, can address this issue.143 First, the Court should discard the categorical approach when analyzing domestic violence laws in the context of federal immigration proceedings, and instead apply a real-world conduct, or conduct-specific approach, as articulated by Justice Alito. Victims of domestic violence are often severely injured by domestic violence perpetrators. The conduct involved in each crime should be used to determine whether a crime qualifies as a crime of domestic violence. The categorical approach forces courts into in an idealized world, which does not adequately account for the real-world conduct of a defendant.
Under a conduct-specific or real-world conduct approach, police reports would always be used in domestic violence cases, regardless of their incorporation into a conviction record or criminal document. Police reports are often the only way for victims to be heard in immigration proceedings, and police reports are often informative as to the severity of a crime of domestic violence.
Also, all relevant facts would be admissible in the determination of a serious crime. Facts that are elicited during proceedings, through either witness testimony or admission, would be used to determine the severity of a domestic violence crime. The immigration judge would then determine whether the crime was a crime of domestic violence and then whether the crime was so serious as to bar certain forms of immigration relief.
There are several reasons that a real-world or conduct-specific approach is warranted in immigration proceedings for domestic violence crimes, and it is a worthwhile approach. A real-world approach would balance the enforcement interests of the government and the due process rights of an alien. If the conduct involved in a particular case was not severe or did not result in significant injury, the alien would be allowed the opportunity to provide court records and other conviction documents and reports to demonstrate that the crime was not so severe as to warrant adverse immigration consequences. At the same time, the government would also be able to produce police reports and other evidence to demonstrate the severity of the alien’s crime.
A real-world conduct approach would avoid the unintended consequences that the present categorical approach has created. The purpose of the INA is to punish and rid our country of those aliens who commit certain serious offenses that are harmful to the United States, not aliens who have committed minor crimes or infractions. By using the categorical approach, this purpose is frustrated and instead the opposite occurs. The wording of a statute could make a minor crime so serious as to warrant negative immigration consequences. At the same time, a statute could make a serious crime not subject to negative immigration consequences.
Finally, using a real-world conduct approach will not overly complicate or burden courts in determinations of whether a crime, based on its conduct, is a crime of domestic violence. The three factors the court would consider are (1) does the record indicate the perpetrator committed an act of violence, (2) did that act cause injury to the victim, and (3) did the victim hold a special relationship to the perpetrator. These three questions can be easily discerned from the record and conviction documents, including police reports, and do not require extensive fact finding. On the contrary, this approach would appear simpler to apply than the categorical approach, where courts must consider the specific statutes of each state in our country.
There is long-standing precedent to hold domestic violence perpetrators accountable for their actions and deny them certain benefits due to their violent conduct. California has done this in the child custody arena and forced domestic violence perpetrators to prove that they have sought help for their problem and have not committed further acts of domestic violence.
These factors should also be applied in immigration proceedings for domestic violence perpetrators who are seeking immigration benefits. This is especially important to uphold the integrity of our immigration system and make sure that the most deserving individuals are given the immigration benefits that they deserve. When only a handful of legal permanent resident cards are given out annually to undocumented aliens seeking lawful status in the United States, perpetrators of domestic violence should be given the burden to demonstrate their commitment to rehabilitation and that they are deserving of the immigration benefits that they seek.
In immigration proceedings, the alien should have the burden to prove that he has been rehabilitated and there is no further risk of domestic violence. Some factors should include (1) passage of time from the prior crime, (2) whether drugs or alcohol were aggravators in the crime, (3) whether the alien still uses said aggravators, (4) the nature and severity of the harm or injuries, (5) whether the incident was the only incident of domestic violence, and (6) remorse for the prior act of violence.
This approach does not eliminate an alien’s ability to seek and gain immigration relief. In fact, an alien could demonstrate that his crime was not particularly serious through the above-mentioned factors. The factors above only shift the burden to the domestic violence perpetrator to demonstrate that the person has made changes and has been rehabilitated or taken steps to correct his prior behavior and habits.
The above-mentioned solutions are only a start. There is much that can be done to combat the harm that domestic violence has caused our society. That being said, our country can take steps to ensure that domestic violence perpetrators do not gain benefits they have not demonstrated they deserve. Domestic violence harms victims and their children, and this behavior should hold consequences for perpetrators. Many laws have been enacted to shift the burden to the perpetrators to ensure that they demonstrate rehabilitation before they are eligible for certain benefits.
Our federal government will be better equipped to determine who deserves certain immigration benefits with the above-mentioned reforms. By considering the real-world conduct of perpetrators and making their domestic violence crimes presumptive bars to immigration relief, our government will be able to better consider these crimes and vet whether each perpetrator is deserving of immigration benefits. The statistics and studies demonstrate the urgency for our government to take steps to address this issue. By taking action against domestic violence perpetrators, our government can begin to address the issue of domestic violence in our society and take additional steps to solve a problem that has caused harm to so many.
1. Statistics, Nat’l Domestic Violence Hotline, https://www.thehotline.org/resources/statistics/ (last accessed Nov. 29, 2018).
2. Id.; see also Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1046 (1991).
3. Nat’l Domestic Violence Hotline, supra note 1; see also Cahn, supra note 2, at 1046.
4. Nat’l Domestic Violence Hotline, supra note 1
5. Richard R. Johnson, Correlates of Re-arrest Among Felony Domestic Violence Probationers, 72 Fed. Prob., no. 3, Dec. 2008, at 42 (discussing levels of recidivism in felony domestic violence probationers).
9. See, e.g., In re Sanudo, 23 I. & N. Dec. 968 (B.I.A. 2006); Matter of Velasquez, 25 I. & N. Dec. 278 (B.I.A. 2010); Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121, 1125 (9th Cir. 2006); Cisneros Perez v. Gonzalez, 465 F.3d 386, 388 (9th Cir. 2006); see also 8 U.S.C. § 1229(b) (2018) (cancellation removal for certain nonpermanent residents).
10. Compare Cal. Pen. Code § 243 (2019), with 18 U.S.C. § 16 (2018).
11. See Taylor v. United States, 495 U.S. 575, 599–601 (1990).
12. See Cisneros Perez, 465 F.3d at 388.
13. Taylor, 495 U.S. at 602.
14. See In re Sanudo, 23 I. & N. Dec. at 974–75.
15. Edna Erez, Domestic Violence and the Criminal Justice System: An Overview, 7 Online J. Issues in Nursing 1, ms. 3 (2002), available at http://www.nursingworld.org/ojin/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OJIN/TableofContents/Volume72002/No1Jan2002/DomesticViolenceandCriminalJustice.aspx (discussing the general history of domestic violence).
19. Id.; see generally Mary Ann Mason, The Roller Coaster of Child Custody Law over the Last Half Century, 24 J. Am. Acad. Matrim. L. 451 (2012), available at http://sc.aaml.org/sites/default/files/Mason.pdf (discussing the evolution of child custody determinations).
20. Erez, supra note 15; see generally Mason, supra note 19.
21. Erez, supra note 15; see generally Mason, supra note 19.
22. See generally Erez, supra note 15; Mason, supra note 19.
23. Cahn, supra note 2, at 1042; see generally Mason, supra note 19.
24. Cahn, supra note 2, at 1042; see generally Mason, supra note 19.
25. Cahn, supra note 2, at 1042.
28. See generally Mason, supra note 19.
29. Cahn, supra note 2, at 1060 n.5 (discussing how, up until 1979, when California enacted a statute establishing a presumption that joint custody was in the best interest of the child if the parents so agreed, only five states had joint custody statutes).
30. Cal. Fam. Code §§ 3011, 3044 (2012).
31. New legislation would extend this rebuttable presumption to any party with a special relationship to the perpetrator of domestic violence. This would create a presumption in favor of any party with a special relationship, not just ones with a claim to legal custody. See Cal. A.B. 2044 (amended Aug. 16, 2018).
32. See Cal. Fam. Code § 3044; see also In re Marriage of Fajota, 230 Cal. App. 4th 1487, 1497 (2014).
33. See In re Marriage of Fajota, 230 Cal. App. 4th at 1500.
34. See Cal. Fam. Code § 3044(a); see also In re Marriage of Fajota, 230 Cal. App. 4th at 1498.
35. See 8 U.S.C. § 1101(a)(43) (2018) (enumerated aggravated felonies under INA).
36. See id.; see also id. § 1227(a)(2)(A) (deportable offenses for lawfully admitted aliens); id. § 1182(a)(2) (crimes that render aliens inadmissible to the United States). This Article will focus on removable offenses. However, crimes of inadmissibility and removability are relatively similar. The differences between these two grounds are outside the scope of this Article.
37. Id. § 1227(a)(2)(E)(i); see generally id. § 1227(a)(2).
38. See id. § 1227(a)(2)(E)(ii); see generally Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009); Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009).
39. See 8 U.S.C. § 1227(a)(2)(E)(ii). While violation of a protective order is a removable offense, it is outside the scope of the present Article.
40. See id.
41. See id. § 1101(a)(43); see also id. § 1227(a)(2)(E)(i).
42. See Matter of Velasquez, 25 I. & N. Dec. 278, 279 (B.I.A. 2010); see also 18 U.S.C. § 16 (2018).
43. See 18 U.S.C. § 16.
44. See 18 U.S.C. § 16(a); see also Matter of Velasquez, 25 I. & N. Dec. at 280.
45. See 18 U.S.C. § 16(b); see also Matter of Velasquez, 25 I. & N. Dec. at 280. Subsection b, known as the residual definition of the crime of violence, has been ruled to be unconstitutionally vague and overbroad as of the Supreme Court ruling in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). This, however, is beyond the scope of this Article.
46. See 18 U.S.C § 16; see also Matter of Estrada, 26 I. & N. Dec. 749, 750 (B.I.A. 2016).
47. See Matter of Estrada, 26 I. & N. Dec. at 750.
48. See generally In re Sanudo, 23 I. & N. Dec. 968 (B.I.A. 2006).
51. See Cisneros Perez v. Gonzalez, 465 F.3d 386, 388 (9th Cir. 2006). This case will be further discussed in Part III.
52. See 8 U.S.C. § 1101(a)(43) (2018) (enumerated aggravated felonies under INA); see also id. § 1227(a)(2)(A) (deportable offenses for lawfully admitted aliens); id. § 1182(a)(2) (crimes that render aliens inadmissible to the United States).
53. See generally 8 C.F.R. § 1240.20–1240.24 (2018) (codifying limits to the annual number of cancellation of removal for nonpermanent resident petitions that may be granted).
54. See generally id.
55. Taylor v. United States, 495 U.S. 575, 599–601 (1990).
57. See generally id. at 575.
58. See id. at 578; see also 18 U.S.C. § 924(e) (2018) (Armed Career Criminals Amendment Act).
59. Taylor, 495 U.S. at 600.
60. See Tokalty v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) (quoting Taylor, 495 U.S. at 600); see also Carly Self, Domestic Victims Aren’t the Only Victims: Deporting Aliens Who Commit Violent Crimes Regardless of the Victim’s Relationship to the Offender, 93 N.D. L. Rev. 87, 92 (2018).
61. See Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013); see also Self, supra note 60.
62. Taylor, 495 U.S. at 599–601.
63. Id. at 599 (noting that when the statute is narrower than the generic definition, then there is no problem because the conviction necessarily implies that the defendant committed generic burglary; also, where the generic definition has been adopted, then there is no further inquiry needed).
64. Id. at 599–601.
65. Id. at 599.
70. See id. at 575 (federal criminal sentencing); see also Moncrieffe v. Holder, 569 U.S. 184 (2013) (immigration).
71. See 569 U.S. at 190–91.
72. Id. at 206.
73. Id. at 189.
74. Id. at 191.
75. Id. at 194.
76. Id. at 194–95.
77. Id. at 215 (Alito, J., dissenting).
78. Id. at 189–90.
79. Id. at 217–18.
81. Id. at 215.
82. Id. at 218.
83. Id. at 213–14.
84. Id. at 218–19.
85. Id. at 211–12.
86. See id. at 212–13 (citing Lopez v. Gonzales, 549 U.S. 47, 50 (2006)).
87. See id. at 218–20.
88. Id. at 217.
89. Id. at 210.
90. Id. at 219.
91. Id. at 219–20.
92. Id. at 218.
93. Id. at 219–20.
94. Id. at 220.
96. See Self, supra note 60.
98. Tokalty v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) (quoting United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001); see also Self, supra note 60.
99. Tokalty, 371 F.3d at 620; see also Self, supra note 60.
100. See Self, supra note 60; see also Tokalty, 371 F.3d at 624.
101. The Board of Immigration Appeals is the court of first appeal in an immigration proceeding. See 8 C.F.R. § 1003.0(A) (2018). After an alien’s case is heard by an immigration judge, the alien has the right to appeal his case to the Board of Immigration Appeals. Like the immigration court system, the BIA is under the leadership of the U.S. Attorney General. See generally id. § 1003.
102. See generally In re Sanudo, 23 I. & N. Dec. 968 (B.I.A. 2006); Matter of Velasquez, 25 I. & N. Dec. 278, 283 (B.I.A. 2010); Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121 (9th Cir. 2006).
103. See, e.g., In re Sanudo, 23 I. & N. Dec. 968; Matter of Velasquez, 25 I. & N. Dec. 278; Fernandez-Ruiz, 466 F.3d at 1125; Cisneros Perez v. Gonzalez, 465 F.3d 386, 388 (9th Cir. 2006).
104. See Matter of Velasquez, 25 I. &. N. Dec. at 283.
105. Id. at 281–82.
106. Id. at 279.
107. Fernandez-Ruiz, 466 F.3d at 1129.
109. Id. at 1123.
110. While a crime of moral turpitude is not defined in the INA, it has referred to certain reprehensible conduct outside the norm of societal behavior. See In re Sanudo, 23 I. & N. Dec. 968, 970–971 (B.I.A. 2006).
111. See In re Sanudo, 23 I. & N. Dec. 968, 972, 975 (B.I.A. 2006).
113. Id. at 972.
114. Id. at 972–73.
116. See id. at 974.
118. Id. at 974–75.
119. See 465 F.3d 386, 388 (9th Cir. 2006).
122. See Cal. Pen. Code § 591 (2019) (prohibits tampering with telephone lines); see also Cisneros Perez, 465 F.3d at 388 n.1, 388–89.
125. See id. at 388.
126. Id. at 389.
128. Id. at 393.
129. Id. at 392.
130. Id. at 393.
137. See Menendez v. Whitaker, 908 F.3d 467, 475 (9th Cir. 2018) (Callahan & Owens, JJ., concurring).
138. Id.; see also Cal. Pen. Code § 288 (2019).
139. Menendez, 908 F.3d at 475 (Callahan & Owens, JJ., concurring).
143. The Legislative Branch, namely Congress, can also do a great deal to solve the present issue. However, this inquiry goes outside the scope of this Article.