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August 2026 ILRC Practice Alert -re United States v. Lopez, No. 24-3268, 2026 WL 2165840 (9th Cir. July 28, 2026)

On July 28, 2026, the Ninth Circuit ruled that Cal. Pen. Code § 273.5 is not a crime of violence. This practice advisory discusses the reasoning of the decision and provides advice on next steps for removal defense practitioners and criminal defenders representing noncitizens.

Source: “Practice Advisory”, available at https://www.ilrc.org/resources/us-v-lopez-ninth-circuit-holds-cal-pen-code-%C2%A7-2735-not-crime-violence

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Why § 273.5 is no longer a crime of violence

The Ninth Circuit focused primarily on mens rea. A federal crime of violence generally requires purposeful or knowing conduct regarding the use of force against another person. California § 273.5, however, is a general-intent offense: the defendant must intend the underlying act but does not necessarily have to intend the resulting injury or even have subjective awareness of the risk that injury will occur.

Because § 273.5 encompasses conduct involving a lower mens rea than the federal crime-of-violence definition, the Ninth Circuit held that the California statute is categorically overbroad and overruled prior Ninth Circuit precedent treating § 273.5 as a crime of violence.

Major immigration consequence: no deportable crime of domestic violence

This is the most important practical consequence. INA § 237(a)(2)(E)(i)’s deportable crime of domestic violence requires the underlying offense to constitute a crime of violence.
Because § 273.5 no longer qualifies as a crime of violence, the ILRC concludes:

A § 273.5 conviction cannot constitute a deportable crime of domestic violence, regardless of the victim’s identity.

Likewise, according to the alert, § 273.5 is no longer an aggravated felony based on a crime of violence with a sentence of one year or more.

This can potentially affect people who were previously:
ordered removed because § 273.5 was considered a domestic-violence offense;
found to have a crime-of-violence aggravated felony;
found ineligible for cancellation or another immigration benefit because of that classification; or
denied asylum or other relief because the conviction was treated as an aggravated felony.

Important limitation: CIMT consequences remain

Lopez did NOT hold that § 273.5 is not a crime involving moral turpitude (CIMT). In fact, Lopez did not address CIMTs. Existing Ninth Circuit precedent has treated § 273.5 as divisible for CIMT purposes depending upon the relationship to the victim—for example, an offense against a spouse can qualify as a CIMT while an offense involving a cohabitant may not.

The ILRC nevertheless identifies a new removal-defense argument after Lopez: advocates can argue that § 273.5 is not categorically a CIMT because its mens rea is also broader than the mens rea generally required for moral turpitude.
The alert further suggests challenging the older divisibility cases under Mathis. These are arguments, however, rather than holdings established by Lopez.

Therefore, practitioners should not simply treat a § 273.5 conviction as immigration-safe.

People with final removal orders

A person who already has a removal order based on § 273.5 may have grounds to seek reconsideration or reopening because Lopez represents a significant change in the controlling law.
The alert explains that equitable tolling may be available when a change in law invalidates the original basis for removal, although diligence is particularly important.
For a motion to reconsider, the ILRC recommends arguing that Lopez constitutes a fundamental change in law and that equitable tolling restarts the 30-day period. The detailed section of the alert identifies August 26, 2026 as the proposed tolled filing deadline.

For a motion to reopen, Lopez can be characterized as a new material fact/change in law demonstrating that the respondent is no longer removable as charged or is newly eligible for relief. If the ordinary 90-day deadline has already expired, the motion should address equitable tolling and diligence.

Cases currently pending before the BIA

Where the respondent’s direct appeal is still pending before the BIA, the alert says the appropriate procedure is generally a motion to remand, rather than reopening or reconsideration.

A motion to remand can argue that Lopez materially changes the law and makes the respondent newly eligible for relief or defeats the legal basis on which the IJ found the respondent removable. Importantly, motions to remand are not subject to the same numerical or time limitations applicable to motions to reopen or reconsider. The alert therefore recommends filing promptly before the BIA decides the underlying appeal.

Particularly serious crime determinations

The decision can also affect cases where § 273.5 was treated as a categorical particularly serious crime because it constituted an aggravated felony.
The ILRC explains that after Lopez, the conviction is no longer categorically a particularly serious crime on that theory. The government may still argue that the conviction is a particularly serious crime based on an individualized factual analysis, but the aggravated-felony classification can no longer automatically establish it.

Other California offenses potentially affected

The reasoning in Lopez may extend beyond § 273.5. The ILRC specifically identifies:

PC § 243(d) — aggravated battery; and
PC § 273d — corporal punishment/child abuse.

Prior Ninth Circuit decisions classified these offenses as crimes of violence, but the alert suggests that Lopez potentially undermines those cases because of similar mens rea problems.

The decision is still new

The ILRC emphasizes an important procedural caution. At the time of the alert, Lopez is a panel decision that could still be challenged. The alert states that the government has until September 11, 2026 to petition for rehearing and potentially until October 26, 2026 to seek Supreme Court review. Consequently, criminal defense attorneys are advised not to treat § 273.5 as a secure immigration-safe plea yet.

Bottom line – The practical rule from the ILRC alert is:

After United States v. Lopez, a California Penal Code § 273.5 conviction is not categorically a crime of violence. Therefore, it cannot serve as a deportable crime of domestic violence under INA § 237(a)(2)(E)(i), and it cannot constitute a crime-of-violence aggravated felony based on a sentence of one year or more.

For existing immigration cases, practitioners should identify clients whose removability, aggravated-felony determination, eligibility for relief, or particularly-serious-crime determination depended on § 273.5 being a crime of violence and assess whether a motion to reconsider, motion to reopen, or motion to remand is appropriate.

The major caveat is that § 273.5 may still carry CIMT consequences, and Lopez itself did not decide that question.