Criminal Defense of Immigrants

(E)  Analysis.  As with other conviction-based grounds of deportation, such as aggravated felonies or crimes of moral turpitude, the domestic violence conviction ground of deportation is evaluated by examining the elements of the offense, and the immigration authorities are generally not allowed to examine the underlying facts of the case.  See § 22.19, infra.  Therefore, if counsel can keep the “record of conviction” clear of certain facts that might bring a conviction within this ground of deportation, a “safe haven” disposition can be constructed.  To avoid deportation under this ground, counsel should attempt to keep the following critical facts out of the record of conviction:

                (1) the victim’s age (in order to avoid a conviction being considered a conviction of child abuse, neglect, or abandonment);

                (2) the protected relationship between the defendant and victim, so as to prevent a conviction, even one for a crime of violence, from being considered as a “crime of domestic violence”;

                (3) the fact that the offense went beyond mere offensive touching; or

                (4) the fact that the criminal intent shown in the particular case went beyond mere reckless infliction of injury.

There are many technical defenses against this ground of deportation.  See § 22.24, infra.  For example, if the elements of the offense require insufficient violence, or insufficient criminal intent, the conviction may not trigger deportation under this ground.  It is therefore important to check the elements of the offense of conviction against the requirements of the ground of deportation to determine whether the conviction triggers deportation under this ground.