Definition of Domestic Violence

 

A conviction of any one of a family of “domestic violence” offenses will trigger deportation, but not inadmissibility.[1]  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.

 

The domestic violence conviction deportation ground includes convictions of a number of offenses:

 

The elements of this prong include:

(1)  a conviction
(2)  after admission
(3)  occurring “after” September 30, 1996,
(4)  of a listed offense, i.e.,

 

(a) a crime of violence which is a crime against the person as defined in 18 U.S.C. § 16(a) and (b), committed against a protected person, or
(b) stalking, or
(c) child abuse, neglect, or abandonment.

 

 

See generally N. Tooby & J. Rollin, Criminal Defense of Immigrants (2007), Chapter 22.

 

Crimes of Violence Under 18 U.S.C. § 16(a).  The first part of the “crime of violence” definition[2] includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another . . . .”[3]  By expressly listing, in addition to the substantive offense of use of force, the two non-substantive offenses of attempt and threat to use force, Congress indicated an intention that any other non-substantive offenses are excluded from this definition.  See § 22.18(B), supra.[4]

 

Crimes of Violence Under 18 U.S.C. § 16(b).  The second part of the crime of violence definition includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[5]  Courts have used this section to hold that offenses such as statutory rape, residential burglary, and involuntary manslaughter are crimes of violence, even though these offenses do not require proof of violence or the threat of violence as an element.  See § 19.41, supra.  It is possible to argue that a particular non-substantive offense, for example, solicitation of a listed DV offense, itself involves a substantial risk that physical force may be used “in the course of committing the offense.” [6]

 

 

 

Immigration Consequences of Domestic Violence Convictions

 

In general, a qualifying domestic violence conviction triggers deportation regardless of sentence, and regardless of whether the conviction is a felony or misdemeanor.[7]  On the other hand, a deportable DV conviction is far less serious than most other conviction-based grounds of deportation: it does not trigger mandatory detention, see Criminal Defense of Immigrants, Chapter 6, does not trigger inadmissibility, see Criminal Defense of Immigrants Chapter 18, does not disqualify a respondent from most types of relief in immigration court, see Criminal Defense of Immigrants § 22.7, does not trigger judicial review limitations, see Criminal Defense of Immigrants § 15.37(B)(1), and does not constitute a bar to showing Good Moral Character, see Criminal Defense of Immigrants § 15.6.  A court finding of a violation of a domestic violence protection order triggers deportation, [8] and all of the other immigration consequences listed here, in exactly the same way as does a qualifying domestic violence conviction.

 

Warning.  Many domestic violence convictions fall into other grounds of deportation, such as aggravated felonies, or crimes of moral turpitude.  The immigration consequences described here pertain to domestic violence convictions that qualify under the domestic violence deportation ground, but do not qualify under another ground of deportation.  The conviction must also be analyzed under other grounds of deportation, and the immigration consequences associated with those other grounds must be evaluated.  See Criminal Defense of Immigrants § 22.6.

 

 

 

Criminal Defense of Domestic Violence Cases

 

Aside from attempting to eliminate some part of the necessary definition of a deportable domestic violence conviction from the record of conviction, there are several techniques that may be useful.  See also Criminal Defense of Immigrants § 22.2(F).

 

(1)  Counsel defending a noncitizen against a domestic-violence charge should seek a plea to an offense that does not identify the victim or otherwise bring the offense within the definition of domestic-violence offenses.  Counsel should also attempt to avoid any reference in the record of conviction (charging paper, plea, judgment, transcripts) to the existence of a listed relationship between the defendant and the complaining witness.  For example, where misdemeanor false imprisonment[9] does not involve force or violence as an essential element, it would not be considered a “crime of violence” under 18 U.S.C. § 16(a), nor under § 16(b), since it is a misdemeanor conviction, not a felony as is required by § 16(b).  Since the offense does not involve force or violence, it may not be considered a crime involving moral turpitude.  This would depend on the exact elements of the statute defining the offense in the particular jurisdiction.

 

(2)  In case the immigration authorities are allowed to go outside the record of conviction to prove the victim was in fact a protected person, defense counsel should seek a disposition that does not involve a listed victim.  For example, where the defendant is accused of assaulting his ex-wife and her new boyfriend, it would be wiser to enter a plea to assault on the new boyfriend.  The new boyfriend is not a person who appears on the list of victims specified in the deportation ground.  The same would hold for a neighbor, or the ex-wife’s uncle, or friend.

 

(3)  The Department of Justice disburses grant money to local prosecutors’ offices, which may be conditioned upon conviction rates, thus placing a financial incentive on prosecutors to secure convictions of certain listed offenses.  Because prosecutors have a duty of fairness to the accused,[10] and placing a financial incentive in favor of conviction upon a judge violates the right to an impartial judge,[11] the defendant’s right to an impartial prosecutor may be violated by this practice.  It may be possible through discovery to document the bribery of the prosecutor’s office that is being perpetrated by the government, that biases it against the defendant in these cases, forcing it to seek a conviction for financial reasons even though it may be against the interests of justice in the individual case.  Thus, it may be possible to force more flexibility in plea bargaining domestic violence cases.

 

(4)  It is common for the “victim” to oppose deportation, either on grounds of family reunification, the necessity to preserve a relationship between the offender and his or her children, the desirability of avoiding deportation in order to ensure the payment of child and spousal support, or simply because of human compassion for everyone involved.  Some prosecutors have begun to realize that by insisting on a disposition that triggers deportation, they are revictimizing the victim and the family’s innocent children.  See Criminal Defense of Immigrants § 8.30.

 

(5)  There is no comparable ground of inadmissibility.  That is, a qualifying conviction triggers deportation, but not inadmissibility, since Congress did not put DV convictions on the list of grounds of inadmissibility.  Therefore, a noncitizen in deportation proceedings can apply for adjustment of status, even if s/he was already a lawful permanent resident, based on the marriage to a United States citizen or lawful permanent resident, as a defense to removal.  See Criminal Defense of Immigrants § 24.2.  This is similar to the firearms deportation ground, which has no parallel ground of inadmissibility, in which the BIA has permitted adjustment of status which, if granted, constitutes a defense against removal.[12]

 

(6)  This discussion has focused on avoiding deportation for this category of offense.  It is important to verify that a domestic violence conviction does not trigger immigration damage in other ways.  The most important are if the conviction constitutes (a) an aggravated felony (as a crime of violence with a one-year sentence imposed, even if not against a listed victim), (b) a crime involving moral turpitude, or (c) a “particularly serious crime” which will disqualify him or her from obtaining political asylum or withholding of deportation.  See Criminal Defense of Immigrants § 22.6.  A noncitizen may not obtain naturalized citizenship while s/he is on probation.  If the defendant serves 180 or more actual days in custody during a Good Moral Character period, s/he may be barred from showing Good Moral Character, and thus become disqualified from obtaining naturalization or other immigration benefits.  See Criminal Defense of Immigrants § 22.7.

 

 

 

Solutions in Domestic Violence Cases

 

Immigration lawyers must learn the rules so they can argue in immigration court that a given conviction is not an aggravated felony, and so avoid the aggravated felony immigration consequences.  These arguments are given in Safe Havens §§ 7.147-7.157 (2005).  Immigration lawyers must also check the record of conviction very carefully to see if the original criminal lawyer succeeded in obtaining a non-aggravated felony conviction in the first place.  Finally, where a conviction does qualify as an aggravated felony, the immigrant may need to seek post-conviction relief in immigration court, so the aggravated felony conviction can be vacated on a ground of legal invalidity, which will eliminate the conviction and avoid its adverse immigration consequences.  See N. Tooby, California Post-Conviction Relief for Immigrants (2009); N. Tooby, Post-Conviction Relief for Immigrants (National Edition 2004).

 

 

This office can assist immigrants who are charged with, or have been convicted of, a domestic violence conviction in several ways:

 

Information. 

We provide the most extensive collection of information on what is and is not a domestic violence conviction in the world, in our newsletters, practice manuals, website, and seminars.

 

Consultation. 

We can offer a consultation, and examine the records from the criminal court, to give a reliable opinion on whether a given conviction is or is not a domestic violence conviction.  We can also offer arguments that an immigration lawyer can use in immigration procedures to argue that the conviction does not qualify as a domestic violence conviction.

 

Elimination of the Conviction. 

If a conviction is causing damage as a domestic violence conviction, we can seek post-conviction relief anywhere in the country to reopen the criminal case, vacate the domestic violence conviction, and obtain a dismissal or alternative plea bargain that does not cause these damaging immigration consequences. Learn more about our Legal Services

 

 

[1] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).
[2] 18 U.S.C. § 16(a).
[3] 18 U.S.C. § 16(a) (emphases supplied).
[4] Szucz-Toldy v. Gonzalez, 400 F.3d 978 (7th Cir. Mar. 11, 2005) (Illinois conviction for “harassment by telephone” under 720 ILCS § 135/1-1(2), prohibiting “making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number” is not an aggravated felony crime of violence for immigration purposes because it is not necessary to prove the use or threatened use of physical force to sustain a conviction under the statute); United States v. Alfaro, 408 F.3d 204 (5th Cir. Apr. 28, 2005) (Virginia conviction of shooting into an occupied dwelling, in violation of Va.Code Ann. § 18.202-79 (1993), did not constitute a crime of violence for purposes of enhancing his sentence for illegal re-entry by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2002), because (a) this offense is not enumerated in the guideline, (b) it does not have as an element the use or threat of force against another, since a defendant could violate this statute merely by shooiing a gun at a building that happens to be occupied or by discharging a firearm within an unoccupied school building, without actually shooting, attempting to shoot, or threatening to shoot another person, so district court committed plain error in sentencing).
[5] 18 U.S.C. § 16(b) (emphasis supplied).
[6] 18 U.S.C. § 16(b).  Cf. James v. United States, ___ U.S. ___ (Apr. 18, 2007) (attempted burglary falls within residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) because it “involves conduct that presents a serious potential risk of physical injury to another.”).
[7] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).  The only exception to this statement is that a conviction that otherwise falls within 18 U.S.C. § 16(b), but not 18 U.S.C. § 16(a), must be a felony or it cannot be considered a crime of violence, and therefore cannot be considered a crime of domestic violence.  See Criminal Defense of Immigrants § 19.42.
[8] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).
[9] See, e.g., California Penal Code § 236, a misdemeanor, which does not involve force or violence.
[10] Berger v. United States, 295 U.S. 78, 85-89 (1935).
[11] Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 757 (1972).
[12] See, e.g., Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992).