WLG Newsletter: "Domestic Assault-Fear: No Longer a Safe Plea for Non-Citizens"

WLG published a "crimmigration" newsletter in July 2013 which discussed the immigration consequences of pleading guilty to a "Domestic Assault-Fear" charge.  Below is the text in full.  A PDF version is available here:  137-105-wlg-newsletter-domestic-assault-fear-no-longer-safe-plea-non-citizens.pdf

Domestic Assault-Fear: No Longer a Safe Plea for Non-Citizens

July 2013

The attorneys at Wilson Law Group, leading practitioners of immigration law in North America, have encountered an important development affecting noncitizen defendants that has surfaced in the last few months. Specifically, the issue is that the Department of Homeland Security (“DHS”) is now arguing that a conviction of “domestic assault – fear” under Minnesota Statute § 609.2242 subdivision 1(1) is a removable crime under the Immigration and Nationality Act (“INA”). This is the first in a series of updates that will focus on the intersection between criminal and immigration law. Wilson Law Group aims to keep you apprised of developments in the law that impact Minnesota attorneys practicing criminal law. In this edition we will focus on the viability of plea agreements under Minnesota Statute § 609.2242 subdivision 1(1).

Most criminal defense attorneys and prosecutors operate under the assumption that a conviction of domestic assault in violation of Section § 609.2242 subd. 1(1) is a “safe” plea in domestic assault cases for noncitizen defendants, and prosecutors will often offer this in plea negotiations when the defendant has no prior domestic violence history. It has been considered a “safe” plea because everyone involved in the criminal and immigration realms seemed to agree it was not a crime of violence under 18 U.S.C. § 16(a), which would make a defendant removable under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act.[1] Beginning in 2013, DHS began to argue that any domestic assault conviction, whether under the fear or the harm portion of the statute, is a removable offense. This is in direct contravention to the widespread reliance on Section 609.2242 subd. 1(1) as a “safe plea” for noncitizen defendants. Until this issue is decided, the criminal bar must proceed with caution when advising defendants and when entering domestic assault pleas on the record.

At issue in the current immigration debate is whether Minn. Stat. § 609.2242 subd. 1(1) has as an element the “use, attempted use, or threatened use of physical force against the person or property of another.” INA § 237(a)(2)(E)(i). The traditional argument was that domestic assault-fear did not have this element, but DHS now contends that it does, relying on an Eighth Circuit sentencing case, U.S. v. Salido-Rosas, 662 F.3d 1254 (8th Cir. 2011). Wilson Law Group is leading the fight against DHS’s attempt to misconstrue the law. Besides raising concerns in the immigration context, this recent development raises issues under Minnesota Rule of Criminal Procedure 15, which attorneys in Minnesota must acknowledge so that they can properly advise noncitizen defendants and preserve their Sixth Amendment right to effective counsel. Padilla v. Kentucky, 559 U.S. 356 (2010).

Attorneys should no longer definitively advise defendants that a conviction under Section 609.2242 subd. 1(1) is not a removable offense. Prosecutors and defense attorneys must ensure that defendants are advised that the immigration consequences of this plea are currently unknown to thwart a slew of future post-conviction actions based on Rule 15.02 and Padilla.

What is the lesson?

• Although domestic assault-fear is not “safe,” it is still better than a plea to domestic assault-harm, which is explicitly a domestic violence crime under the Immigration and Nationality Act.
• The plea allocution is critical.  Focus on the element of “intent to cause fear” which does not require an actual touch or threat of touching. A loosely worded allocution can have severe and unexpected consequences in the immigration context.
• Do not stipulate that the complaining witness was in actual fear.

This issue will remain an open question in Minnesota for many months to come while the question moves through the administrative and federal circuit appellate process. Wilson Law Group is currently leading the charge with several cases in progress on this exact issue. It is likely that there will not be an answer to this question until one of these cases reaches the Eighth Circuit. In the meantime, every member of the criminal bar needs to take the necessary measures to ensure they are adequately advising defendants before they plead guilty under Minn. Stat. § 609.2242 subd.1(1).

Questions or comments? Please contact us at 612-436-7100.