Is an Immigrant Convicted of Domestic Violence Deportable?

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Although the technical name for people who have U.S. green cards is “lawful permanent resident,” their residence may turn out not to be so permanent after all if they are convicted of a crime, including a crime of domestic violence. Green card holders, as well as nonimmigrant (temporary) visa holders are subject to removal (deportation) from the U.S. for commission of certain crimes.

Certain minor crimes may not cause problems for noncitizens, but every criminal conviction must be compared against the federal grounds of deportability to see whether it matches a type of crime listed there. If it does, the green card or visa holder may be placed into removal proceedings by Immigration and Customs Enforcement (ICE). Ultimately, an Immigration Judge may order the person deported from the United States.

Federal Grounds of Deportability Specifically List Domestic Violence

Under Section 237 of the Immigration and Nationality Act (I.N.A.), any noncitizen convicted after September 30, 1996 of domestic violence, stalking, child abuse, child neglect, or child abandonment, is deportable. It doesn’t matter how long the person has held the visa or green card – committing the crime at any time after being admitted to the U.S. is sufficient to make the person deportable.

The meaning of domestic violence under this law covers crimes of violence committed by a current or former spouse of the victim, a co-parent of a child, a live-in or domestic partner or ex-spouse, or anyone else who acts against someone who is legally protected by local or federal domestic or family violence laws.

To understand what’s meant by “violence,” one must turn to 18 U.S. Code Section 16, which defines it a as either:

  • an offense that has as an element the use, attempted use, or threatened use of physical force against another person or the person’s property, or
  • any felony offense that, by its nature, involves a substantial risk that physical force may be used against a person or the person’s property.

Violations of protection orders can also make an immigrant deportable under this section of the immigration law. A "protection order" is, according to the I.N.A., any court-issued temporary or final injunction issued to prevent domestic violence or threats.

Domestic Violence May Also Lead to Deportability as a “Crime of Moral Turpitude”

Not every type of crime receives individual discussion under the immigration laws. Many crimes fall into the broad category of a “crime of moral turpitude” or CMT. Immigrants can be ordered removed from the U.S., according to Section 237 of the I.N.A., if they have either been convicted of either:

  • a crime of moral turpitude that they committed within five years of being admitted to the U.S. (or within ten years in a few cases) and the crime carried a possible sentence of one year or more, or
  • two or more crimes involving moral turpitude, which did not arise out of a single scheme of criminal misconduct, regardless of whether they served a sentence or whether the convictions occurred during a single court trial.

Domestic violence can be considered a crime of moral turpitude.

Domestic Violence May Also Lead to Deportability as an “Aggravated Felony”

Yet another portion of Section 237 of the I.N.A. states that an immigrant can be deported for having been convicted of an aggravated felony at any time after being admitted to the United States. Some crimes of domestic violence may, depending on their facts and circumstances, be considered aggravated felonies. That’s because the definition of aggravated felony found in Section 101(a)(43) of the I.N.A. includes crimes of violence punished by at least one year in prison. For the definition of “violence,” you would once again turn to 18 U.S. Code Section 16, described above.

Being found guilty of an aggravated felony leads to especially severe consequences for a green card or visa holder. Removal from the U.S. is virtually guaranteed, and will lead to a permanent bar upon returning.

How Crimes of Domestic Violence Come to the Attention of Immigration Authorities

Under a program called “Secure Communities,” ICE signs cooperative agreements with local law enforcement agencies under which it receives the fingerprints of people arrested or booked into custody. It then checks these against its immigration databases to figure out who is unlawfully present or removable from the United States. ICE also conducts its own investigations for removable immigrants, for example by reviewing the names of people in court or in custody. If the person is already in custody, ICE may put a hold on him or her and pick the person up after the sentence has been served.

Even if someone isn’t apprehended by ICE, any application for a green card or U.S. citizenship will require the person to submit fingerprints, which will reveal arrests or convictions.

See an Attorney If You Are an Immigrant Convicted of a Crime

As should be clear from the above, the intersection of criminal and immigration law is extremely complicated. If you are a noncitizen and have been arrested for domestic violence or any other crime, see not only a criminal defense lawyer but an experienced immigration lawyer as soon as possible.

by: , J.D.

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