Criminal Defense of Immigrants


§ 22.33 VI. Court Finding of Protection Order Violation

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In 1996, Congress created a new, very broad ground of deportation for those, including juveniles, who suffer a court finding of a violation of a family-violence protective order.[156]  A person becomes deportable whom a civil or criminal court has found to have violated a domestic violence protective order, even without a criminal conviction.  See § 22.34(B), infra.  This ground applies only to “violations” occurring “after” the effective date of IIRAIRA, September 30, 1996.  See § 22.34(C), infra.  This deportation ground may apply to juveniles, as well as adults, since it does not depend on the existence of a criminal conviction, and it is likely (though not certain) that a juvenile court would be considered a “civil or criminal court” for this purpose.  It is therefore important to avoid a juvenile court finding that the minor violated a domestic violence temporary restraining order.  See § 22.34(D), infra. There are a number of safe havens with respect to this ground of deportation.  See § 22.34(E), infra.


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




Counsel can argue that a violation of a protective order cannot be considered a CMT unless the criminal prosecutor filed a criminal charge under a criminal statute such as California Penal Code 273.6. A civil court finding that triggers removal under INA 237(a)(2)(E)(ii), 8 U.S.C, 1227(a)(2)(E)(ii) should not be considered a "crime" of moral turpitude. Cf. Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004) (Oregon "violation" judgment in which there was no right to appointed counsel, no right to jury trial, no jail possible, and no right against conviction absent proof beyond a reasonable doubt, did not constitute a "conviction" for immigration purposes).

Even if a "conviction" results, counsel can still argue that violation of a protective order is a regulatory offense, rather than a crime of moral turpitude, because there is nothing inherently wrong with violating a court order; it is just that the judge has forbidden it. Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006) (de minimus battery against a spouse is not a CMT), can also be used to argue that conviction for a technical or de minimis violation of a protective order cannot categorically be considered a CMT.


Immigration counsel can argue that INA 240A(b)(1)(C), barring 10-year non-LPR cancellation for anyone convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3), does not reach a person who was found by a court to have engaged in conduct that violated a qualifying portion of a protection order under INA 237(a)(2)(E)(ii), if the person was not convicted of an offense under the specified statutes. This removal ground does not require or mention a criminal conviction. On the other hand, it is based on a court determination of certain conduct regardless of whether that conduct constitutes a criminal offense, and regardless of whether the person was convicted of that conduct. Because INA 240A(b)(1)(C) requires a criminal conviction, rather than applying where the person merely committed an offense " as the Act so often does, it cannot apply to non-conviction based grounds such as INA 237(a)(2)(E)(ii). Because this removal ground is not based on a conviction, it cannot trigger the conviction-bar to non-LPR cancellation under INA 240A(b)(1)(C). Thanks to Jonathan Moore.