Criminal Defense of Immigrants


§ 22.37 D. Finding by a Wrong Court

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The statute expressly requires that the noncitizen must be “enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order . . . .” [170]  In other words, a court must have issued a protection order, and the same state’s court must determine the noncitizen violated a certain portion of the order.  Therefore, if the court determination that the noncitizen violated the order is made by a court different than the court that issued the order, this ground of deportation does not apply.  The phrase, “the court” could mean: (a) the judge, (b) the same variety of court, i.e., family court, criminal court, juvenile court, or (c) any court in the same territorial jurisdiction.  Since the noncitizen must be given the benefit of all reasonable doubts concerning the reach of the deportation statute, see § 16.38, supra, the statute should be given the narrowest reasonable reading: the same judge who issued the order or at least a judge sitting in the same department of the same court performing the same (e.g., family court) function.

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