California is home to many immigrants from all over the world. If you are one and face a conviction for a domestic violence offense, your immigration status could be jeopardized. Facing an arrest or being detained for a domestic violence crime could result in an automatic immigration hold.
The police will always notify the Department of Homeland Security (DHS) after arresting you, and an immigration hold could be placed on you. The hold prevents your release from custody even at the end of your sentence. The DHS places you in federal custody after your imprisonment is completed to begin removal proceedings.
Facing conviction for a domestic violence crime results in many collateral consequences that you could ignore, especially immigration repercussions. Because of such grueling experiences, you should contact an experienced criminal attorney if you suspect you could face an arrest, detention, or domestic violence crime.
The U.S. Immigration and Nationality Act and Domestic Violence
The U.S. Immigration and Nationality Act (INA) provides for the implications of domestic violence on your immigration status. The act delineates crucial classifications that non-U.S. citizens must know to understand the potential ramifications of a domestic violence conviction.
These categories of immigrants include:
- Those inadmissible to the US.
- Those facing mandatory deportation from the US.
- Those facing optional deportation from the US.
As an immigrant, you are subject to optional removal upon conviction for many domestic violence crimes. However, you are only considered inadmissible if you face conviction for a crime involving moral turpitude (CIMT) or an aggravated felony.
This is advantageous because, if considered inadmissible, you cannot enjoy the following:
- Becoming a green card holder/ legal permanent resident.
- Becoming a US citizen.
- Re-entering the country lawfully once you leave.
Therefore, you want to avoid committing domestic violence crimes that could be a CIMT or aggravated felony.
Domestic Violence and Crimes of Moral Turpitude
Domestic violence offenses encompass a broad range of acts involving violence or abuse within intimate relationships, including physical harm, emotional abuse, or threats of violence. Such offenses often occur within familial or household contexts and can involve various forms of aggression, including spousal abuse, child abuse, or elder abuse.
Crimes of moral turpitude, on the other hand, encompass a broader category of offenses that are considered contrary to societal morals and standards. These offenses typically involve intentional or malicious conduct, such as fraud, theft, or acts involving deceit or dishonesty. Crimes of moral turpitude are often associated with dishonesty, fraud, or malicious intent, reflecting negatively on an individual's character and moral integrity.
In the context of immigration law, domestic violence offenses that also qualify as crimes of moral turpitude can significantly impact an individual's immigration status. A conviction for a crime of moral turpitude, including certain domestic violence offenses, can render an individual inadmissible to the United States or subject to deportation. Furthermore, such convictions can impede an individual's ability to obtain legal permanent residency, naturalization, or other forms of immigration relief.
What Is A “Crime Of Domestic Violence” For Immigration Purposes?
According to the INA, a “crime of domestic violence” means a “crime of violence” meted out to the following persons:
- Your former or current spouse.
- Someone with whom you have a child.
- A romantic partner with whom you have a child.
- Someone who is protected under the US or state family or domestic violence law, a local government unit, or an Indian tribal government.
The Legal Definition Of “Crime Of Violence”
A "crime of violence" encompasses actions that involve the use, attempted use, or threatened use of physical force against another individual or their property. This crime is prosecuted as a felony because it involves the use of physical force against someone else's property.
Therefore, a felony could be an offense even if you did not use threats or physical force against your victim. The law only requires proof of a risk that you could use physical force to commit the offense. The prosecution could charge you with a misdemeanor if you threatened, attempted, or used physical force.
Example - Ken, a green card holder, threatens to murder his ex-spouse, Karen. Because of Ken’s credible threat, Karen has a reasonable and actual fear for her safety. Upon Ken’s arrest, he faces misdemeanor charges for PC 422 (making a criminal threat). Ken pleads guilty to the crime, and he is posted to probation and placed under an anger management program. However, he is not sent to jail. Ken could face removal from the US because his crime involved a threat to use physical force.
Domestic Violence Crimes Under California Law
In California, various offenses fall under the classification of domestic violence. These offenses encompass various actions that can potentially lead to domestic violence charges. Some examples of domestic violence crimes may include, but are not limited to:
One such offense is sexual battery, which constitutes a felony charge under Penal Code 243.4. Additionally, corporal injury to a spouse or cohabitant, as outlined in Penal Code 273.5, can result in either a misdemeanor or felony charge. Moreover, assault, addressed under Penal Code 245(a), can lead to either a misdemeanor or felony charge, depending on the circumstances of the case. False imprisonment, as defined in Penal Code 236, can be considered a domestic violence crime if it involves physical force or menace rather than fraud or deceit.
Child Abuse, Neglect Or Abandonment
Under immigration law, convictions related to child abuse, neglect, or abandonment can have severe ramifications, potentially leading to deportation for non-U.S. citizens. convictions related to these offenses can potentially lead to deportation, regardless of the relationship between the immigrant and the child. The definition of child abuse under the Immigration and Nationality Act (INA) encompasses a wide range of prohibited acts against individuals under the age of 18.
The INA provides for the following offenses under this section:
- Exploiting a child for sexual gratification.
- Allowing a minor to engage in pornography, prostitution, or other sexually explicit conduct.
- Causing mental or emotional harm to a child.
- Sexually assaulting or abusing a child.
- Causing bodily injuries to a child.
- Child endangerment.
- Child abandonment or neglect.
Immigration Consequences Of Stalking
Stalking, although not specifically defined in federal immigration law, can be considered a deportable offense under the Immigration and Nationality Act (INA). Stalking, as defined under California's criminal stalking law (Penal Code 646.9), involves repeated following, harassing, or threatening another person to the extent that the victim fears for their safety or the safety of their family. While not automatically classified as an aggravated felony, stalking may be categorized as a crime involving moral turpitude (CIMT), leading to potential inadmissibility for non-citizens.
Individuals facing stalking allegations must exercise caution before accepting plea deals or making legal decisions. Consulting with a knowledgeable legal professional with a comprehensive understanding of both criminal and immigration law is imperative to safeguarding one's rights and navigating the intricate legal terrain effectively.
Violation Of A Protective Order And Immigration
Violating a protective or restraining order can have significant implications for the immigration status of non-U.S. citizens in the United States. Both criminal and civil court findings of violating a protective order can render an individual deportable under the Immigration and Nationality Act (INA).
A violation of a protective order does not necessarily have to involve physical violence to lead to deportation. Any order violation, regardless of the nature of the conduct, can result in potential removal if it occurred after your admission into the US and after September 30, 1996.
When Domestic Violence Is Considered An Aggravated Felony
This section explains the circumstances under which domestic violence is classified as an aggravated felony. The explanation is crucial in comprehending the potential consequences for non-U.S. citizens under immigration law. A domestic violence offense is considered an aggravated felony under U.S. immigration law if a court imposes a sentence of one year or more.
The implications of an aggravated felony conviction are far-reaching, affecting various forms of immigration relief and legal re-entry into the United States. Immigrants with an aggravated felony conviction may face significant hurdles in obtaining asylum, cancellation of removal, waivers of inadmissibility, voluntary departure, naturalization, and acquiring a green card. Additionally, re-entry into the United States after such a conviction may lead to enhanced penalties, including extended periods of incarceration.
Given the severe ramifications associated with an aggravated felony conviction, individuals facing allegations of domestic violence must seek immediate legal guidance from knowledgeable professionals.
When Domestic Violence Is Considered A Crime Involving Moral Turpitude
Understanding the circumstances under which domestic violence is classified as a crime involving moral turpitude (CIMT) is essential in grasping the potential implications for individuals within the context of immigration law. Certain domestic violence offenses may be considered crimes involving moral turpitude, leading to potential inadmissibility for non-U.S. citizens.
Crimes of domestic violence that can fall under the category of CIMT include offenses such as sexual battery, felony false imprisonment, child abuse, child pornography, rape, and various lewd acts and sex crimes involving minors.
Understanding the specific offenses classified as CIMT is crucial for individuals navigating the legal system, particularly when immigration status may be at risk. Given the potential gravity of a CIMT classification, individuals facing allegations related to domestic violence should prioritize seeking legal counsel from experienced professionals well-versed in both criminal and immigration law.
Can Someone Avoid Deportation If They Agree to Domestic Violence Counseling?
The possibility of avoiding deportation through participation in domestic violence counseling is a question of significance for individuals facing potential removal from the US. Under immigration law, a conviction, including a plea of guilty or no contest, remains on an individual's record even if they later have their California conviction expunged.
Although domestic violence counseling can be a positive step in addressing the underlying issues and demonstrating a commitment to rehabilitation, it may not always guarantee exemption from deportation or other immigration consequences.
Given the elements involved in addressing domestic violence charges and their potential impact on immigration status, seeking legal counsel from seasoned professionals with expertise in both criminal and immigration law is essential.
Will I Get A Hearing Before Being Removed From The U.S.?
Lawful permanent residents (green card holders) and visa holders are entitled to a formal hearing in front of an immigration judge before being subject to removal. Furthermore, they retain the right to appeal an unfavorable decision to the Board of Immigration Appeals. This right to a formal hearing and subsequent appeal underscores the importance of due process and procedural fairness within the immigration system.
Conversely, individuals unlawfully present in the U.S. do not possess the right to a formal hearing. In such cases, U.S. Immigration and Customs Enforcement (ICE) may physically remove them from the country without a hearing merely for their unlawful presence.
How Can I Avoid Being Deported for Domestic Violence?
Avoiding deportation because of domestic violence allegations is a paramount concern for individuals navigating the intricate landscape of immigration law. In some cases, pleading guilty to a lesser charge may be a viable strategy to avoid deportation.
However, it is crucial to emphasize the importance of pleading with the right charge rather than one that solely aims to avoid incarceration. Understanding the specific charges that carry no immigration consequences for individuals lawfully present in the U.S., such as trespassing, misdemeanor false imprisonment, or simple battery, can be instrumental in formulating an effective legal strategy.
It is imperative to recognize that securing a plea deal that minimizes immigration risks necessitates a comprehensive knowledge of criminal and immigration law. Consulting with experienced legal professionals well-versed in the intricacies of domestic violence charges and their implications for immigration status is crucial for individuals seeking to protect their rights and pursue the most favorable legal outcome for their case.
Furthermore, exploring avenues for post-conviction relief, reduction of convictions, or pursuing alternative forms of relief, such as asylum or hardship waivers, can be instrumental in mitigating the risk of deportation for individuals facing domestic violence charges.
Defending Your Case to Avoid Immigration Consequences
When facing domestic violence allegations with potential immigration consequences, employing effective defense strategies is crucial to safeguarding your rights and mitigating the risk of adverse outcomes. Several key strategies can be instrumental in defending your case and minimizing the impact on your immigration status:
- Legal Counsel Expertise: Seek the guidance of an experienced attorney with expertise in criminal defense and immigration law. A knowledgeable legal professional can provide comprehensive insights into the intricate interplay between domestic violence charges and immigration consequences, offering tailored guidance specific to your case.
- Plea Negotiation: Explore the possibility of negotiating a plea bargain for a lesser offense that does not trigger deportation or inadmissibility. Collaborate closely with your attorney to strategize the most favorable plea deal that minimizes immigration risks while ensuring a fair resolution to the criminal case.
- Evidentiary Support: Compile compelling evidence and witness testimonies that support your innocence or refute the allegations against you. Building a strong evidentiary foundation can bolster your defense and provide a more robust case against potential immigration consequences.
- Post-Conviction Relief: Explore avenues for post-conviction relief, such as filing a writ of habeas corpus or seeking a reduction of a conviction from a felony to a misdemeanor. Leveraging post-conviction remedies can offer opportunities to mitigate the impact of a domestic violence conviction on your immigration status.
- Alternative Relief Options: Investigate alternative forms of relief, including asylum, hardship waivers, or specific visas tailored to individuals facing unique circumstances. Understanding the potential eligibility for alternative relief options can open up avenues for remaining in the U.S. despite a domestic violence conviction.
- Comprehensive Legal Strategy: Develop a comprehensive legal strategy integrating various defense approaches, including proactive measures to address potential immigration consequences. A well-rounded defense strategy accounts for criminal and immigration law considerations, ensuring a holistic approach to protecting your rights and securing the best possible outcome for your case.
Find an Los Angeles Immigration Attorney Near Me
If you are currently facing the complexities of domestic violence charges and their potential implications for your immigration status, seeking timely and expert legal counsel is paramount. An experienced immigration attorney can provide the necessary guidance and support to navigate the intricate legal landscape and protect your rights effectively.
Understanding immigration law, especially concerning domestic violence allegations, requires the expertise and knowledge of seasoned professionals who can provide tailored legal advice and strategic counsel. By consulting with a reputable immigration attorney, you can gain a comprehensive understanding of the legal options available and build a strong defense strategy tailored to your specific circumstances.
At California Immigration Attorney, we have skilled attorneys who can offer personalized guidance, assess the circumstances surrounding your case, and provide valuable insights to help you make informed decisions throughout the legal process. With our support, you can navigate the California judiciary system with confidence and pursue the most favorable outcome for your case.
Take the first step in safeguarding your rights and protecting your immigration status by consulting with a trusted immigration attorney in California today. For more information and expert legal guidance, contact us at 424-789-8809.