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The Supreme Court held a conviction for simple battery against a domestic victim triggers the prohibition against firearms possession at 8 USC 922(g)(9), a federal crime. Immigration advocates had feared that a holding along these lines would be used to justify expanding the domestic violence ground of deportability to also include simple battery against a domestic victim--making deportable, for example, an immigrant convicted of the misdemeanor offense of pushing his wife.

Fortunately, however, the Court explicitly stated at footnote 4 that nothing in its decision should cast doubt on precedent that holds simple battery against a domestic victim does not implicate the deportability ground. The court recognized that the deportability ground incorporates the generally-applicable "crime of violence" definition at 18 USC 16, which the Court has repeatedly held applies only to the active use of violent force capable of causing injury.

The criminal statute in Castleman did not include that reference to 18 USC 16, so the Court applied a much more expansive definition of domestic violence, over Justice Scalia's objections. It cited arguments and statistics by advocacy groups and the Department of Justice to explain why a simple battery that would not be considered "violent" in the ordinary sense is "violent" when it occurs in the domestic context, since it often occurs as part of a pattern of intimidation and control.


This case supplies a definition for the phrase “crime of stalking” under INA § 237(a)(2)(E)(i). Although the phrase is not defined by the Act, the Board held that it should be given its “ordinary, contemporary, and common meaning,” which is: (1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual, (3) with intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death. (The Board left open the question whether, to qualify as a crime of stalking, there must also be a fourth requirement that the conduct actually caused the victim to be placed in fear of bodily injury or death.)

Applying this definition, the Board held that California Penal Code § 646.9 is a crime of stalking under § 237(a)(2)(E)(i) because it requires proof that the defendant “willfully, maliciously, and repeatedly follow[ed] or willfully and maliciously harasse[d] another person and . . . ma[de] a credible threat with the intent to place that person in reasonable fear for his or her own safety, or the safety of his or her immediate family,” thereby satisfying all three elements of the generic crime.

Notably, the Board commented in a footnote that at least one California Court of Appeal decision holds that the term “safety” in Penal Code § 646.9 includes “endangerment or hazard” in addition to physical safety. This leaves open potential arguments that the statute is not a categorical match with INA § 237(a)(2)(E)(i). Nevertheless, the Board noted that in this particular case the respondent had not argued, nor was there any evidence, that the fear experienced by his victim was anything other than a fear of physical safety.


The Board held that a conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for telephoning a person protected by the order constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act.

Section 237(a)(2)(E)(ii) provides that an alien admitted to the U.S. who violates "the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable."

The Board concluded that contacting the subject of a protection order by telephone made the respondent deportable even if the call did not involve threats or repeated harassment. It reasoned that the no-contact portion of a protection order (as opposed to portions concerning attending counseling or paying costs) involved protection from credible threats, repeated harassment, or bodily injury because a court would only issue it if there had been past abuse or threats and the no-contact order protects the victim from being victimized again.

In reaching that conclusion, the Board did not discuss the potential significance of the fact that the case involved a temporary protection order, which typically is issued before the court determines if credible threats of violence, repeated harassment, or bodily injury actually had occurred.  Indeed, the telephone call in this case occurred twenty days before the hearing on the restraining order.  The temporary restraining order thus apparently was based only on the woman's unproven allegations.

The Board's construction gives no effect to the statutory language that seems to require a determination that the threats, repeated harassment, or bodily injury had occurred and that any threats were credible.  A better construction would require, at least in the case of unproven ex parte temporary restraining orders, that the immigration judge actually find that the violation did involve such conduct.

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The court held that a felony violation of Revised Code of Washington section 9A.44.089 (sexual contact with a 14 or 15 year-old by a person at least 48 months older) constitutes a crime of child abuse within the meaning of the ground of deportability at INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i).

The opinion telegraphed its outcome by gratuitously describing the offense as "child molestation." The elements of the offense described by the court, however, appear to permit conviction for consensual sexual activity between a 15 year-old and a 19 year-old.  Consensual sex with a 15 year-old may be unlawful, but it only became so in the U.S. over the last century.  It is hardly equivalent to the types of crimes one normally thinks of upon hearing the term "child molestation."

Moreover, little analysis accompanies the opinion.  The primary question is whether the offense amounts to "abuse."  The opinion answers the question simply by stating the conclusion: "Section 9A.44.089 makes illegal the act of touching the sexual or other intimate parts of the victim when the victim is either 14 or 15 years old and the perpetrator is at least forty eight months older. This conduct, at a minimum, constitutes maltreatment of a child and impairs the child’s mental wellbeing."  This is hardly obvious in the case of consensual sexual activity between a 15 year-old and a 19 year-old.

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