Is an Immigrant Convicted of Domestic Violence Deportable?

You might think that, as someone with a U.S. green card or "lawful permanent resident" (LPR) status, your stay in the United States will truly last forever. But LPR status can turn out to be not-so-permanent under certain circumstances, most notably if the person is convicted of a crime. In fact, it's not only green card holders but all nonimmigrant (temporary) visa holders who can be placed into immigration court proceedings by Immigration and Customs Enforcement (ICE) for commission of any of various crimes. Ultimately, an Immigration Judge can order the person removed (deported) from the United States. One of the crimes that can get a foreign national deported is domestic violence, as we will discuss in this article.

Federal Grounds of Deportability Includes Domestic Violence

Every criminal conviction must be compared against the federal grounds of deportability to see whether it matches a type of crime listed there. These grounds are found in Section 237 of the Immigration and Nationality Act (I.N.A.), which says that 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 U.S. visa or green card—committing the crime at any time after being admitted to the United States is sufficient to make the person deportable.

What Is Considered Domestic Violence for Immigration Law Purposes?

The meaning of domestic violence under this section of the 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 is meant by "violence," one must turn to 18 U.S. Code Section 16, which defines it 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. You might have also heard them called "temporary restraining orders" or TROs.

Domestic Violence Conviction Can Also Lead to Deportability as a "Crime of Moral Turpitude"

Not every type of crime receives individual naming or discussion under the immigration laws. Many crimes fall into the broad category of a "crime involving moral turpitude" (CIMT). 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 involving moral turpitude that they committed within five years of being admitted to the U.S. (or within ten years, in a few types of 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 the person served a sentence or whether the convictions occurred during a single court trial.

Domestic violence can also be considered a crime of moral turpitude. What does that mean in practice? There could be a situation where the crime is not charged as domestic violence, but the various acts, such as assault and battery, lead to a conviction that is considered a CIMT and thus might lead to deportability.

Domestic Violence Conviction Can Also Lead to Deportability as an "Aggravated Felony"

Yet another portion of I.N.A. Section 237 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 might, 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.

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

How U.S. Immigration Authorities Find Out About Immigrants' Crimes of Domestic Violence

The fingerprints of people arrested or booked into custody are routinely sent to the U.S. Federal Bureau of Investigation (FBI) for a criminal background check. This information can then be transmitted to ICE so that the agency can determine whether the person is a deportation priority. It is not uncommon for someone to serve time in jail or prison only to have an immigration "hold" placed on them, meaning they will be released to ICE custody immediately afterward.

Also, even if an immigrant convicted of domestic violence is not apprehended by ICE, any time that person applies for a green card renewal or for U.S. citizenship, they will have to submit fingerprints, usually at a required biometrics appointment. The results will reveal any criminal 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. (It even has its own name, "crimmigration," and a few specialized practitioners.) If you are a foreign national who has been arrested for domestic violence or any other crime, see not only a criminal defense lawyer but an experienced immigration attorney. as soon as possible. In particular, do not wait until you've already pled guilty to something or been sentenced to alert your criminal defense attorney to the fact that your immigration status is at risk; and if necessary, get an immigration attorney's advice as to what plea agreement might minimize the immigration impact of your conviction.