(B) Recent Decisions.  In Sutherland v. Reno, [1133] the Second Circuit considered a petition for review of a decision of the Board of Immigration Appeals holding a defendant convicted in Massachusetts of indecent assault and battery on a person over the age of 14.[1134]  The noncitizen argued that (a) the conviction did not constitute a “crime of violence” under 18 U.S.C. § 16, and (b) that the victim was not a “protected person” within the meaning of the domestic violence conviction deportation ground.

            The Second Circuit held that in order to constitute a deportable conviction of a crime of domestic violence, the offense must (a) constitute a “crime of violence” under 18 U.S.C. § 16, and (b) the victim must be a person protected under state family violence laws. 

 

            The court concluded that this conviction did not have as an essential element the use of force, and therefore did not qualify as a “crime of violence” under 18 U.S.C. § 16(a).  The conviction, however, did constitute a felony conviction, carrying a possible sentence of five years in prison.  It therefore met the “felony” requirement of 18 U.S.C. § 16(b).  The offense of indecent assault and battery against a person of 14 years of age,[1135] requires a “touching [which,]. . . judged by the normative standard of societal mores, is violative of social and behavioral expectations, in a manner which is fundamentally offensive to contemporary moral values and which the common sense of society would regard as immodest, immoral and improper.”[1136]  This offense also requires lack of consent as an essential element.[1137]  Therefore, the Sutherland court concluded: “Like the BIA, we are persuaded that any violation of Mass.Gen.Laws ch. 265, § 13H, by its nature, presents a substantial risk that force may be used in order to overcome the victim’s lack of consent and accomplish the indecent touching.”[1138]  The court therefore concluded this conviction constituted a “crime of violence” under 18 U.S.C. § 16(b).

 

            The Sutherland court then confronted the question whether the victim in the case was “a person who [wa]s protected from [the defendant’s] acts under the domestic or family violence laws of . . . any State.”[1139]  Because Massachusetts law protects all “family or household members”[1140] from violent crimes and other forms of abuse, the court concluded that the defendant’s 19-year-old stepdaughter who was residing with him was a protected person within the meaning of the domestic violence conviction deportation ground. 

 

            It is important to note that the court relied on the fact that the defendant “admits that his stepdaughter resided in the household at the time of his offense.”[1141]  Therefore, in Sutherland, no question was presented whether the INS could properly go outside the record of conviction to establish that the victim was a family member or a resident of the defendant’s household.[1142]

[1133] Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000).

[1134] Mass. Gen. Law ch. 265, § 13H, constituted a domestic violence conviction triggering deportation under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[1135] Mass. Gen. Laws ch. 265, § 13H.

[1136] Commonwealth v. Lavigne, 676 N.E.2d 1170, 1172 (Mass. App. Ct. 1997) (citations and internal quotation marks omitted).

[1137] Maghsoudi v. INS, 181 F.3d 8, 15 (1st Cir. 1999).

[1138] Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000), citing United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993).

[1139] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[1140] Mass. Gen. Laws ch. 209A, § 1.

[1141] Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000).

[1142] Generally speaking, if the criminal defendant makes a factual admission during the criminal plea or sentence proceedings, that admission may be considered as part of the record of conviction in determining under which part of a divisible statute the defendant stood convicted. Matter of Madrigal-Calvo, 21 I. & N. Dec. 323 (BIA 1996) (the transcript of the defendant’s plea and sentence hearing, during which he admitted possession of a firearm, was held part of the record of conviction and was thus sufficient to establish that the defendant was convicted of a deportable firearms offense).  On the other hand, if the respondent admits a fact in deportation proceedings bearing on whether a conviction meets the definition of a deportable offense, that admission is not sufficient to supply a defect in the proof contained in the record of conviction presented to the immigration court.  Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (where the record of conviction failed to identify the statutory subdivision under which the noncitizen was convicted or the weapon he was convicted of possessing, deportability is not proved even where the noncitizen testified in deportation proceedings that the weapon he possessed was a gun).  The decision in Sutherland does not indicate the context in which the defendant admitted the victim was a member of his household.   

Ninth Circuit

DOMESTIC VIOLENCE - DIVISIBLE STATUTE ANALYSIS
Cisneros-Perez v. Gonzales, ___ F.3d ___, 2006 WL 1728068 (9th Cir. Jun. 26, 2006) (California conviction of battery, in violation of Penal Code 242 (any willful and unlawful use of force or violence upon the person of another), not shown on this record under modified categorical analysis to be a crime of domestic violence, within the meaning of 8 U.S.C. 1227(a)(2)(E)(i), because there was insufficient documentation to establish a domestic relationship; dismissed counts naming spouse as victim, sentence to domestic violence counseling, and order to stay away from spouse cannot be used to establish that conviction for battery of unnamed victim was a crime of domestic violence).

SENTENCING V. IMMIGRATION CONTEXT - DOMESTIC VIOLENCE
Cisneros-Perez v. Gonzales, ___ F.3d ___, 2006 WL 1728068 (9th Cir. Jun. 26, 2006) (distinguishing between INA 237(a)(2)(E)(i), and 8 U.S.C. 921(a)(33)(A)(i) [sentence enhancement for person with prior domestic violence conviction found in possession of a firearm], in that the former requires that the domestic relationship be an element of the offense, where the latter merely requires that the offense was in fact committed against someone with a domestic relationship), distinguishing United States v. Belless, 338 F.3d 1063, 1065-1067 (9th Cir. 2003).

DOMESTIC VIOLENCE - DOMESTIC BATTERY - CALIFORNIA CONVICTION OF SIMPLE BATTERY DID NOT QUALIFY AS DOMESTIC VIOLENCE CONVICTION WHERE RECORD OF CONVICTION DID NOT ESTABLISH NECESSARY DOMESTIC RELATIONSHIP
Cisneros-Perez v. Gonzales, 451 F.3d 1053 (9th Cir. June 26, 2006) (California conviction of simple battery, in violation of Penal Code 242, did not qualify as deportable domestic violence conviction, under INA 237(a)(2)(E)(i, 8 U.S.C. 1227(a)(2)(E)(i), where record of conviction did not establish necessary domestic relationship), opinion amended on denial of rehearing, ___ F.3d ___, 2006 WL 2819961 (9th Cir. Oct. 4, 2006) (amendment deleted the following sentence: "Where, as here, there are statutes directly addressing domestic violence, such as California Penal Code sections 243(e)(1) and 273.5, only the most convincing proof of the nature of a conviction for a more general crime will suffice to establish a crime of domestic violence." 451 F.3d at 1059-60 [emphasis in original]).
http://caselaw.lp.findlaw.com/data2/circs/9th/0471717p.pdf