How Domestic Violence Convictions Affect Immigration and Deportation

A conviction for a crime of domestic violence or related offense can subject a non-U.S. citizen to deportation (removal). In some cases, it can also make an immigrant inadmissible for re-entry to the United States and ineligible for U.S. citizenship or a green card.Crimes of “domestic violence” affecting immigration include:

• A “crime of violence” against a current or former domestic partner;
• Child abuse, neglect or abandonment;
• Stalking; and
• Violation of a domestic violence protective order.¹

The good news is that these are charges that can be difficult to prove. An experienced criminal defense lawyer may be able to keep you from getting convicted. Alternatively, he or she may be able to negotiate a plea bargain to a non-removable offense.

But such plea bargains can be a bit tricky. Some crimes of domestic violence also count as aggravated felonies or crimes of moral turpitude and other states. Pleading guilty to one of these offenses can lead to both mandatory deportation and inadmissibility.

To help you better understand the immigration consequences of a domestic violence conviction, our criminal and immigration lawyers discuss, below:

• 1. The U.S. Immigration and Nationality Act and domestic violence
• 2. What is a “crime of domestic violence” for immigration purposes?
  • 2.1. The legal definition of “crime of violence”
  • 2.2. What are some domestic violence crimes in California?
• 3. Child abuse, neglect or abandonment
• 4. Immigration consequences of stalking
• 5. Violation of a protective order and immigration
• 6. When is domestic violence an aggravated felony?
• 7. When is domestic violence a crime involving moral turpitude?
• 8. Can I avoid deportation if I agree to domestic violence counseling?
• 9. Will I get a hearing before being removed from the U.S.?
• 10. How can I avoid being deported for domestic violence?

1. The U.S. Immigration and Nationality Act and domestic violence

The U.S. Immigration and Nationality Act (“INA”) sets forth classes of non-U.S. citizens who are:

1. Subject to optional removal (deportation) from the U.S.,
2. Subject to mandatory removal (deportation) from the U.S., or
3. Inadmissible to the U.S.²

Conviction of most crimes of domestic violence offense subjects a person to optional removal from the U.S. But unless the crime is also considered an aggravated felony or a crime involving moral turpitude (“CIMT”) it does not make a person inadmissible.

This is good because someone who is inadmissible to the U.S. cannot:

• Re-enter the U.S. lawfully after leaving,
• Become a US citizen (“naturalize”), or
• Become a legal permanent resident (“green card” holder).

It is particularly important, therefore, to avoid a domestic violence conviction that would fall into one of these categories.

Now let’s take a closer look at how the INA defines the various categories of crimes that count as domestic violence.

2. What is a “crime of domestic violence” for immigration purposes?

The INA defines a “crime of domestic violence” as a “crime of violence” committed against:

• A current or former spouse,
• Someone the defendant has a child with,
• A live-in romantic partner, or
• Any other person who is protected under the domestic or family violence laws of the United States or any state, Indian tribal government, or unit of local government.³

2.1. The legal definition of “crime of violence”

For purposes of immigration law, a crime is a “crime of violence” if:

• An element of the crime is the use, attempted use, or threatened use of physical force against the person or prop¬erty of another, or
• The offense is a felony that by its nature involves a substantial risk that physical force against the person or property of another will be used in the course of committing the crime.⁴

What this means is that a felony can be a crime of violence even if no physical force is used or threatened. There need only be a risk that the use of physical force might be required in committing the crime.⁵

But a misdemeanor can only be a crime of violence if physical force is actually used, attempted or threatened.

Example: Bill, a lawful permanent resident (“green card” holder) makes a credible threat to kill his ex-wife, Carrie. As a result, Carrie is placed in actual and reasonable fear for her safety. Bill pleads guilty to a misdemeanor violation of Penal Code 422, California’s law against making a criminal threat. He receives probation and anger management classes, but no jail time. However, because Bill threatened to use physical force, he can still be deported.

2.2. What are some crimes of domestic violence in California?

In addition to violent crimes such as Penal Code 187 murder and Penal Code 261 rape, California crimes that count as crimes of domestic violence can include (but are not limited to):

• Sexual battery, Penal Code 243.4 (felony charge),
• Corporal injury on a spouse or cohabitant, Penal Code 273.5 (misdemeanor or felony),
• Assault, Penal Code 245(a) (misdemeanor or felony), and
• False imprisonment, Penal Code § 236 (if a felony and accomplished by violence or menace rather than fraud or deceit).

Remember, however, the victim must be a current or former spouse, “baby parent,” or cohabitant for a crime to count as a crime of domestic violence. (But they might still count as an aggravated felony or CIMT even if the victim is not a domestic partner).

3. Child abuse, neglect or abandonment

Conviction of child abuse, neglect or abandonment will subject a non-citizen to possible deportation.⁶

The child does not need to be the immigrant’s child or a child with a special relationship to the immigrant. For purposes of the INA, child abuse includes any prohibited act against anyone under the age of 18.⁷

Offenses covered by this section of the INA include (without limitation):

• Child neglect or abandonment,
• Child endangerment,
• Physically harming a child,
• Sexually abusing or assaulting a child,
• Intentionally causing mental or emotional harm to a child (including injury to morals),
• Allowing a minor to engage in prostitution, pornography, or other sexually explicit conduct, or
• Exploiting a child for sexual gratification.

4. Immigration consequences of stalking

Federal immigration law does not contain a specific definition of stalking. But federal courts have held that Penal Code 646.9 PC, California’s criminal stalking law is a deportable offense.⁸

Under PC 646.9, stalking involves:

1. repeatedly…
2. following, harassing and/or threatening another person…
3. to the point where that individual fears for his/her safety or the safety of his/her family.

Fortunately, stalking does not automatically count as an aggravated felony, which would make deportation mandatory.⁹

But it probably counts as a crime involving moral turpitude. Defendants should accordingly be wary of pleading guilty or no contest to PC 646.9 unless there is no other decent option.

5. Violation of a protective order and immigration

A non-citizen is deportable if either a criminal or a civil court issues a finding that he/she has violated a protective or restraining order meant to prevent domestic violence.¹⁰

The violation of the protective order does not have to be violent to make an immigrant deportable. Any violation of the order is sufficient as long as the conduct:

1. Took place after the immigrant was admitted into the U.S., and
2. Occurred after September 30, 1996.

6. When is a domestic violence crime an aggravated felony?

A crime of violence is an aggravated felony under U.S. immigration law whenever a court imposes a sentence of one year or more.¹¹

Conviction of an aggravated felony keeps a non-citizen from obtaining many forms of immigration relief including:

• Asylum or “withholding of removal,”
• Cancellation of removal,
• A 212(h) Waiver of Inadmissibility,
• Voluntary departure,
• Naturalization (becoming a U.S. citizen),
• Obtaining a green card, and
• Being able to lawfully re-enter the United States.

Additionally, people with an aggravated felony conviction who re-enter the U.S. illegally face enhanced penalties – up to 20 years in prison instead of 2 years.¹²

If an immigrant must plead guilty to a crime of violence, it is best to make sure the sentence is less than one year to avoid it being an aggravated felony.

7. When is domestic violence a crime involving moral turpitude?

Some domestic violence offenses are also considered crimes involving moral turpitude (“CIMT”). Conviction of a CIMT can, with some exceptions, make a non-citizen inadmissible to the U.S.

Crimes of domestic violence that are also CIMTs can include (but are not limited to):

• Sexual battery, Penal Code 243.4 and
• Felony false imprisonment, Penal Code 236,
• Child abuse, Penal Code 273d
• Child pornography, Penal Code 311.11(a)
• Rape, Penal Code 261, and
• Most lewd acts and sex crimes involving a child under 18.

8. Can I avoid deportation if I agree to domestic violence counseling?

Maybe. For purposes of immigration law, a conviction (including a plea of guilty or no contest) remains on your record even you later get your California conviction expunged.

Consult with an experienced California “crimmigration” lawyer before accepting a plea bargain that requires you to plead guilty or no contest to domestic violence.

9. Will I get a hearing before being deported for domestic violence?

Lawful permanent residents (“green card” holders) and visa holders have the right to a formal hearing in front of an immigration judge before they can be removed. They also have the right to appeal an adverse decision to the Board of Immigration Appeals.

People who are in the U.S. unlawfully do not have the right to a formal hearing. U.S. Immigration and Customs Enforcement (ICE) can physically remove them from the country without a hearing simply for being in the country unlawfully.

10. How can I avoid being deported for domestic violence?

The best way to avoid deportation for domestic violence is not to be convicted of a charge that makes a non-citizen removable under immigration law.

In some cases, this will mean pleading guilty to a lesser charge.

But… it is important to plead to the right charge (not just one that will keep you out of jail).

Some charges carry no immigration consequences for people who are in the U.S. lawfully. These include:

• Trespassing, Penal Code 602;
• Misdemeanor false imprisonment, Penal Code 236; and
• Simple battery, Penal Code 242, based on offensive touching.

But sometimes it is not possible to obtain a plea that has no immigration consequences whatsoever. In such a case it is important to plead to an offense that does not trigger mandatory deportation or inadmissibility.

There are many possible pleas that can minimize your immigration risks.

We cannot stress enough the importance of consulting with a California criminal lawyer who understands U.S. immigration laws before accepting a plea deal.

And remember — even if you have been convicted, an experienced attorney may be able to help you obtain:

• Post-conviction relief (such as a writ of habeas corpus),
• Reduction of a “wobbler” conviction to a misdemeanor, or
• Asylum, a hardship waiver, a “T” or “U” visa or other relief that will to allow you to remain in the U.S. despite a conviction.

Accused of domestic violence? Call us for help…

If you or someone you care about has been charged with domestic violence, we invite you to contact us for a free consultation.

Our California criminal attorneys understand how a criminal conviction can affect immigration rights. We will fight not only to keep you out of jail but to keep you in the U.S. and with your family.

Your consultation is 100% free and completely confidential.

Also see our article about U Visas.

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