The best way to avoid an offense triggering the aggravated felony COV provision is to ensure that there is a sentence imposed of less than one year (365 days), regardless of time suspended. Unlike the domestic violence (DV) deportation ground, the aggravated felony COV provision will only apply to a noncitizen where a sentence of one year or more is imposed. For immigration purposes the sentence imposed is related to the specific count pleaded. The sentences will not be aggregated for purposes of deportation. See Chapter Three:Sentencing Strategies for additional information on crafting a sentence. Note that this strategy is not relevant to (and will not work for) the COV issue under the DV ground of deportation, which has no sentence requirement.

2. Pleas to Assault in the Third Degree²³⁹

Under both U.S. Supreme Court and Ninth Circuit case law discussed above, a conviction for assault third under the (f) negligence prong will not constitute a COV under immigration law. This analysis also applies to attempted assault in the third degree. Third degree assault is also not a CIMT under immigration law, so a conviction for this offense will not trigger any statutory
grounds of deportation, inadmissibility or aggravated felony provisions.

3. Pleas to Assault in the Fourth Degree²⁴⁰

In Washington State case law,241 fourth degree assault includes a number of possible ways to commit the offense, some of which would constitute a COV under immigration law and some of which would not. There are two options to avoid a COV when pleading to assault in the 4th degree. The best option is to ensure that the charging document only recites the language of the statute and then to craft the plea statement to say only that the defendant engaged in conduct that amounted to “offensive touching.” The ideal language for such a plea statement would read “committed assault by offensive touching without the use or the threat of the use of force.” The second option is to plead generally by ensuring that the plea document, like the charging papers, simply recites the language of the statute and does not reference any conduct that constitutes the use of force.

4. Plea to Subsections that Do Not Involve the Use or Threat of Force

Carefully craft a plea to a provision of a multi-pronged statute that does not involve the use/threat of use of force. This is the least preferable of the alternatives listed here and above. Where a statute has numerous prongs, some of which may involve the use of force and some which may not, counsel should seek a
plea to a prong that does not, or at least could be construed as not involving the use of force. For example, harassment under RCW 9A.46.020(1)(a) has four separate prongs, some of which do not categorically require the use of force. Counsel should negotiate a plea to one of these specific prongs and ensure that the charging document and the defendant’s plea recite only the language of the statute. Since the offense can be committed both in ways that do and do not involve the use of force, under the categorical analysis used in immigration proceedings, the mmigration authorities cannot meet their burden to show that this conviction involved the requisite use of force.²⁴² See Section 5 below on Harassment. See generally Chapter Four: Carefully Crafting a Noncitizen’s Plea.

5. Charges of Harassment²⁴³

Negotiating a plea to harassment in the manner proposed here and above is an alternative that should avoid it being a COV. But practically speaking, counsel must warn the defendant that immigration authorities may still consider this offense to constitute a COV offense for immigration purposes. Thus, the noncitizen could still end up in removal proceedings but would have a strong argument to contest deportation (with counsel). Crafting a ROC for harassment that could avoid deportation would require negotiating a plea statement and amended charging document that only recite the language of the statutory provision at issue and do not specify actions by the defendant that involved threats to use force. Provision 9A.46.020(1)(1)(ii), of the harassment statute, penalizing threats to “to cause physical damage to the property of a person other than that actor,” may be the best option for a plea to avoid deportation for a DV offense, since it also allows the argument that the offense involved a property crime, and not a crime against a
person. ”²⁴⁴ Harassment subsection 9A.46.020(1)(iii) penalizes knowingly threatening, “to subject the person threatened or any other person to physical confinement or restraint.” Counsel should negotiate a plea to this specific prong and ensure that the chargingdocument and the defendant’s plea recite only the language of the statute. Since this offense can be committed both in ways that do and do not involve the use of force, under the categorical analysis used in immigration proceedings, the
immigration authorities cannot meet their burden to show that this conviction involved the requisite use of force.²⁴⁵ For additional details on how to craft the plea & ROC, see Chapter Four: Carefully Crafting a Noncitizen’s Plea.

²³⁸ U.S. v. Pimentel-Flores, 339 F.3d 959, 969 (9th Cir. 2003).
²³⁹ RCW 9A.36.031 assault in the third degree pursuant to the (f) provision.
²⁴⁰ RCW 9A.36.041 assault in the fourth degree.
²⁴¹ See State v. Davis, supra n. 237.
²⁴² See infra, n. 245: “restraint” can be by deception.
²⁴³ RCW 9A.46.020(1).
²⁴⁴ INA§ 237(a)(2)(E)(i); 8 USC § 1227(a)(2)(E)(i); a crime of violence must be committed “against… a person,” protected by DV laws.
²⁴⁵ E.g., the definition of “restraint” used at RCW 9A.40.010(1)(a) includes restriction by deception.