Court rules against deportation of immigrant convicted of domestic violence
By Howard Fischer
Capitol media services
Tucson, Arizona | Published: 10.26.2006
advertisementFederal immigration officials can't use the domestic violence conviction of a Tucson man to deport the legal immigrant, the 9th U.S. Circuit Court of Appeals ruled Thursday.
In a split ruling, the judges acknowledged that Jose Fernandez-Ruiz was convicted three years ago of the state crime of domestic violence. And federal law spells out that legal immigrants -- residents who are not citizens -- can be deported for crimes of domestic violence.
But the majority concluded that federal law requires a finding by a trial court that the person committed the crime intentionally.
Yet the Arizona law under which Fernandez-Ruiz was charged permits conviction when someone recklessly -- but unintentionally -- causes physical injury to another. And the documents from that case do not prove he intentionally used force.
That, wrote Judge Carlos Bea, means the U.S. Department of Homeland Security can't use the 2003 conviction to oust him.
The ruling drew a stinging dissent by Justice Kim Wardlaw.
"Men do not beat their wives by accident," she wrote on behalf of herself and two other judges.
"Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent to hold that an Arizona domestic violence conviction is not a 'crime of domestic violence' for purposes of a federal immigration law," Wardlaw continued. She said her colleagues were stretching the law "to absurdity."
But Bea said the dissenters are the ones ignoring the law.
He said there is nothing in the state court record to prove that the Tucson man intentionally assaulted his girlfriend, who also is the mother of his child. And absent that record, Bea said, the federal appellate court cannot automatically conclude that the act was intentional.
Court records show that Fernandez-Ruiz was first convicted of domestic violence in 2002 and placed on probation for 15 months. The second conviction the following year the Mexican citizen pleaded guilty to domestic violence and was sentenced to six months in jail.
While Thursday's ruling prevents the Tucson man from being deported for that conviction, he is not out of legal hot water -- or going to be released from federal detention: Federal immigration officials still hope to use those 2002 and 2003 convictions to deport him on the basis of crimes of "moral turpitude.'

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