Criminal Defense of Immigrants


§ 22.1 I. Introduction

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In 1996, Congress added a completely new ground of removal, which can be called the “Domestic Violence” ground of removal.[1]  This new statute has two parts: 


                (1) A conviction of any one of a family of “domestic violence” offenses will trigger deportation, but not inadmissibility.[2]  This ground requires a conviction, so all defenses against a disposition being considered a conviction would apply to prevent removal.  See § 22.12, infra; Chapter 7, supra.  This ground of removal does not require the conviction to be a felony and requires no particular sentence.  Therefore, a minor misdemeanor conviction that meets the statutory definition will trigger removal even if no sentence to custody is imposed.


(2) A civil or criminal court finding that a noncitizen has violated a certain portion of a family law protective order will also trigger removal (even if there is no conviction).[3] 


                Many “domestic violence” offenses will also constitute crimes of moral turpitude,[4] or aggravated felonies,[5] and trigger independent immigration consequences under those grounds.  It is therefore very important, even when a solution has been found to the domestic violence ground, to make sure the noncitizen is not independently removable or inadmissible for the same conviction under one or more of these other grounds.  See § 22.6, infra. 


                If the domestic violence conviction is not an aggravated felony, the noncitizen may be eligible to apply for cancellation of removal.[6]  If it is not an aggravated felony or a crime involving moral turpitude, the noncitizen is not subject to mandatory detention during deportation proceedings.[7]  Concerning these and other immigration consequences of a domestic violation conviction, see § 22.5, infra.

[1] INA § 237(a)(2)(E), 8 U.S.C. § 1227(a)(2)(E).

[2] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[3] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

[4] E.g., Guerrero de Nodahl v. INS, 407 F.2d 1405 (9th Cir. 1969) (intentional cruel corporal punishment of child under Cal. Penal Code § 273a is crime involving moral turpitude).

[5] Rape, including statutory rape, and sexual abuse of a minor are aggravated felonies regardless of whether they are misdemeanors or felonies and regardless of the sentence imposed.  INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).  See § 19.83, supra.  A crime of domestic violence constitutes a “crime of violence,” under 18 U.S.C. § 16, and therefore is an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), if a sentence of one year or more is imposed.  See § 22.6(B)(1), infra.

[6] INA § 240A(a), 8 U.S.C. § 1229b(a). See § 24.4, infra.

[7] INA § 236(c)(1)(B), 8 U.S.C. § 1226(c)(1)(B) does not list the DV ground as a trigger for mandatory detention; accord, Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, concerning Detention Guidelines Effective October 9, 1998, dated October 7, 1998, reprinted at aila monthly mailing 1115 (December, 1998). See Chapter 6, supra.