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Thoughts on DV cases

Federal law prohibits firearms possession by persons convicted of misdemeanor domestic violence. It defines DV as an offense that has, among others, "has, as an the element, the use or attempted use of physical force," against a cohabitant (or, curiously enough, a former spouse, regardless of whether they are cohabiting).

Current immigration law allows removal of an alien who commits an act of "domestic violence," defined as "any crime of violence" as defined in 18 USC sec. 16) against an intimate partner. 18 USC §16 in turn defines crime of violence to include “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Pretty close to the GCA definition.

The Ninth Circuit recently ruled in Fernandez-Ruiz v. Gonzales (No. 03-74533 (Oct. 26, 2006) that Arizona's DV statute did not qualify as grounds for deporation under the federal standard. The reasoning seems to be that under the Arizona statute, a conviction can be had for reckless, nonintentional, use of force, and that a reckless use of force (even tho literally within the coverage of the statute's term "use of force") is not covered by the statute.

The Circuit notes that its earlier cases had suggested that recklessness was enough, but now it relies on the Supreme Court ruling in Leocal v. Ashcroft, 543 U.S. 1 (2004). Since the relevant element of the Arizona statute is not limited to intentional use of force, an Arizona DV conviction is not a crime of DV under the federal immigration law.

Of course, when in the Ninth Circus, we have to bear in mind that the same statutory language may have radically different meanings when a gun owner and gun law is involved.

· prohibitted persons