Introduction
Under current immigration laws, a legal resident may be deported if he or she pleads guilty to or is convicted of a domestic violence charge. These actions don’t automatically trigger deportation, but they can serve as grounds for ICE to initiate removal proceedings against you. Even if you aren’t deported, a domestic violence charge could prevent you from re-entering the United States if you ever leave the country.
If you have been charged with a domestic violence crime, you should consult with an immigration attorney as soon as possible—preferably before entering a plea agreement. Depending on the situation, your attorney may be able to reduce the charges so that they do not trigger removal proceedings. If you have a criminal defense attorney, he or she should be in close contact with an immigration attorney to ensure that your chances of being deported are minimized.
Unfortunately, the risk of deportation doesn’t end with the successful handling of your domestic violence charge. If the victim files for a restraining order under the Domestic Violence Prevention Act in Family Law Court, your legal status in the United States may be at risk. If ICE doesn’t move to deport you, you may be barred from re-entering the country should you ever travel outside the United States. Solving this part of the problem will likely require additional mediation, negotiations, and counseling outside of court.
Domestic Violence in the Immigration and Nationality Act
Section 237 of the Immigration and Nationality Act (§ 237) dictates that a non-citizen who is convicted of domestic violence, child abandonment, child abuse, child neglect, or stalking, is deportable. This applies regardless of how long the individual has resided in the United States with a visa or green card.
In this context, domestic violence includes crimes of violence that are committed by a current or former spouse, the co-parent of a child, a live-in partner, a domestic partner, or anyone else who acts against someone who is legally protected by federal, state, and/or local family violence laws. Under US Code 18 Section 16, applicable violence encompasses the use, attempted use, or threatened use of physical force against another person or property, and any felony offense that, by nature, involves a substantial risk that physical force may be used against a person or property.
Note that § 237 also includes violations of protection orders as a deportable offense. According to the law, a protection order involves any court-issued injunction, temporary or final, that is issued to prevent domestic violence or threats.
Domestic Violence as a Crime of Moral Turpitude
Domestic violence may also be considered a crime of moral turpitude, which as a class are considered deportable offenses. Under § 237, an immigrant may be removed from the United States if they have been convicted of either:
- One crime of moral turpitude within five years of admittance to the United States
- Two or more crimes of moral turpitude arising from multiple schemes of criminal misconduct, regardless of how long the immigrant has been in the United States
Outside of domestic violence, there are a number of crimes that may be considered a crime of moral turpitude. The actual definition is fairly vague, but in practice the courts have established that the following crimes may be considered a crime of moral turpitude:
- Arson
- Assault with vicious intent
- Bribery
- Counterfeiting
- Forgery
- Fraud
- Gross indecency
- Kidnapping
- Mayhem
- Stealing
- Tax evasion
- Transporting stolen property
The only exception to this rule is when a crime of moral turpitude is classified as a petty offense. To qualify as a petty offense, the individual must receive a prison sentence of less than one year and actually serve less than six months of that sentence.
Domestic Violence as an Aggravated Felony
A domestic violence charge may qualify as an aggravated felony in some cases. Generally speaking, the prison sentence will need to be at least one year in length to qualify.
Unfortunately, aggravated felonies are the worst deportable offenses as they essentially guarantee that the immigrant will be deported. In many cases, the immigrant may even qualify for expedited removal. If so, he or she will not be entitled to standard removal proceedings and may be deported in as little as 1 – 2 weeks. Aggravated felonies also typically carry a permanent ban on returning the United States.
Alerting ICE of Deportable Offenses
Immigration attorneys are often asked how ICE is alerted to deportable crimes, as the agency’s reaction to deportable crimes is unpredictable at best. The answer is a program referred to as the Priority Enforcement Program (PEP). When an immigrant is arrested, his or her fingerprints are sent to the FBI for a criminal background check. The FBI then passes the arrest information along to ICE, and the agency determines if the individual in custody is considered a priority for deportation.
Under previous administrations it was safe to say that a misdemeanor was considered low priority for ICE. Unfortunately, that classification system has changed recently, with ICE aggressively pursuing more cases of immigrants with a misdemeanor domestic violence charge.
Deportation
If ICE chooses to initiate removal proceedings to deport you from the country, you should speak with an immigration attorney as soon as possible. Standard removal proceedings often take 1 – 3 years between the initial hearings and appeals, and you’ll need an experienced attorney to maximize your chances of being granted relief from deportation. Depending on your situation, you may be able to present one or more of the following defenses against deportation:
- Credible fear of persecution – immigrants who can prove that there is a credible fear of persecution or torture in their home country may have a valid case for asylum, withholding of removal, or Convention Against Torture relief. Such cases are prime candidates for appeals to the Immigration Board of Appeals and the Circuit Court of Appeals if you receive a removal order.
- Cancellation of removal – this form of relief is available to both lawful permanent residents and non-permanent residents (with qualification). It allows the judge to adjust your status from “deportable” to “lawfully admitted for permanent residence.”
- Voluntary departure – in some cases, it’s better to voluntarily leave the US than to stay and fight deportation. Not only is the cost of this route much more affordable, it may provide you with the opportunity to re-enter the country sooner than if you were to be deported. If the court grants your request for voluntary departure, you are typically given 2 – 4 months to settle your affairs and leave the country.
Call our Immigration team at(480) 626-2388 to discuss your case today.