Find out how domestic violence can affect your immigration status

Find out how domestic violence can affect your immigration status

If you need help with your immigration status, call us today at (619) 746-8879

Domestic violence in the United States is a crime that is considered genuinely problematic. Therefore, pleading guilty or being found guilty by a court for such a crime can result in immediate and permanent removal from the country.

That it’s to say, if you are charged under these charges, you should ideally find an attorney as soon as possible to minimize the sentence. After minimized, you can stop worrying about your stay in the United States. 

The attorney’s job would be to minimize the charges and be in constant contact with a deportation prosecutor to decrease the likelihood of removal. Also, the sentence may not allow you to re-enter if you have left the country.

How the US Immigration and Nationality Act (INA) and domestic violence works

Most domestic violence crimes lead to an optional decision; in other words, there is a chance of appeal to the court. However, this depends directly on the judgment of the panel.

Certain crimes can result in removal from the country without appeal. For example, if the crime involves moral turpitude (CIMT) or an aggravated felony, it can make the convicted person inadmissible.

If the sentence is considered under the crimes mentioned above or becomes grounds for expulsion, the person will no longer be able to:

• Become a US citizen (naturalize).
• Become a permanent resident in the country (a Green Card holder).
• Entering the country legally after leaving it.

If you are afraid of being deported, you should know that the Immigration and Nationality Act (INA) applies to three types of people. One of the requirements is that they must not be US citizens. These three types are:

• Subject to mandatory removal (deportation) from the United States.
• Subject to optional removal (deportation) from the United States.
• Inadmissible to the United States.

However, this is not the whole nature of the INA. It is a more complex set of laws and quite relevant to immigrants. 

What is the Immigration and Nationality Act (INA)?

In 1952, in the quest to improve immigration laws in the United States, the INA, or Immigration and Nationality Act, was created. At the time of its creation, the act compiled all immigration rules and regulations and condensed them together.

Over the years, INA has undergone many revisions and modifications to improve it as much as possible. Now, it is the leading immigration law in the country, being a place where all immigrants go, even without knowing it.

The INA is an act that you can find in US law. It is, therefore, a group of laws that are part of the immigration policies of the country. It is divided into five titles that together make up the entire act.

The Immigration and Nationality Act regulates almost all parameters regarding immigration in the United States:

• Visas of all kinds.
• Procedures for change of immigrant status.
• Admission and management of refugees.
• Asylum applications.
• Status settings.
• Qualifications for permanent residents (Green Card).
• Petitions for spouses and children.
• Visa Waiver Program.
• Visa applications and issuance.
• Permits for re-entry.
• Detentions of foreigners.
• Temporary Protected Status (TPS).
• Rules on revocations of petitions.
• Management of US citizenship.
• Qualification and application for naturalization (citizenship).

It is why the laws INA has within it are so important; without them, immigration to the United States would be unregulated. It is the matrix of the entire conglomerate of laws and other rules about immigration to the country.

What’s the definition of “crime of domestic violence” in the immigration theme?

“Crime of domestic violence” can be confusing, as it can mean several things under US law. However, the INA has its definition of “crime of domestic violence” for ambiguities that cause problems in the various cases that may arise.

The INA ends up defining the concept of “crime of domestic violence” as a “crime of violence” perpetrated to the detriment of:

• A romantic partner with whom the defendant is living.
• A current or a former spouse of the defendant.
• Someone with whom the defendant has an infant.

Any other person under the protection of the family violence laws in any state of the United States, Indian tribal government or unit of local government.

Thus, the strength of the claim and the gravity of the matter depends not only on the defendant’s actions, but also on the government under which it is governed. However, there remains a consensus in this regard.

How the law defines a “crime of violence”?

“Crime of violence” is an even broader term than “crime of domestic violence,” which can easily lead to unwanted ambiguities within a trial. For this reason, the law has its definition in this regard.

Specifically, when we need to cite the concept for migration management, a crime of violence is considered as such if:

• The crime may involve an item that was used, attempted to be used, or threatened to be used by physical force against a person, their property, or something else.
• The act is a crime that, by its very nature, involves a detailed risk in which physical force against the victim, the victim’s property or something else used may be used or threatened to be used during the crime.

It means that a violent crime can be considered violent even if physical force is not used. Only a threat of physical violence at the time of the crime is sufficient to be considered a violent crime.

A few examples of crimes of domestic violence in California’s law

Let’s talk about some of them to get a broader view of the cases involving domestic violence crimes. Since domestic violence is a severe and problematic crime, it’s best to get to know it in depth. 

In California law, we can find cases in which it is considered a crime of domestic violence, which can affect the legal status under which a legal immigrant lives in the United States. For example:

• Sexual battery is a felony charge (Penal code 234.4).
• Corporal injury to a spouse or cohabitant is a misdemeanor or a felony (Penal code 273.5).
• Assault as a misdemeanor or a felony (Penal code 245)(a).
• False imprisonment is a felony accomplished by violence or threats such as fraud or lies (Penal Code § 236). 

Under this type of accusation, permanent expulsions from the country can occur without reintegration in case of reaching an unfavorable verdict for the accused. Putting the person’s residency status at risk.

Child abuse, neglect or abandonment is an element that affects immigration and deportation

Child abuse and neglect of abandonment are also crimes capable of subjecting a non-US citizen to deportation. It is because of their relationship to domestic violence and the malice involved in such acts.

Some examples of offenses included in the INA related to this topic:

• Child neglect or child abandonment
• Child entrapment. Also known as child abuse, it refers to unreasonably putting a child under the age of 18 in danger, suffering or pain. Even if the minor is not harmed by it.
• The child’s physical harm. Also known as child abuse specifically, this refers to physical abuse in its various forms. 
• Sexual assault and abuse against a child. Under the various laws that apply to sexual assault or abuse of minors.
• Mental or emotional harm to a child willfully (including injury to morals). Generally, harm against children does not include physical harm.
• Permitting minors to engage in or approach pornography, prostitution and other sexually explicit conduct. Crimes are considered particularly malicious.
• The exploitation of children for sexual purposes. For example, sexual gratification.

It is important to note that the child does not have to be related to the defendant for the offense to be considered for deportation proceedings. Crimes of this type are, for the most part, considered severe.

The fact that the victim is a minor is sufficient for the court to consider the offense’s child abuse. “Child abuse” is a broad concept used as a general term for crimes against children.

Stalking, another offense that affects the immigration purposes

Stalking is another offense that, in the worst cases, can lead to the accused being deported from the country. This offense is considered a wobbler; that is, it can be considered a misdemeanor or a felony.

Even so, in the Penal Code, no precise definition of “stalking” can be found. However, federal courts continue to uphold Penal Code 646.9, “stalking” as a deportable offense. 

Under Penal Code 646.9, “stalking” would be: repeatedly following, harassing, or threatening a person to the point where that person fears for their safety and those close to them.

If you are charged with stalking, the concept that will be used to define the offense will be the one given above. Depending on the severity of it, it will be considered a misdemeanor or felony.

It is essential to know because depending on whether the crime is considered a misdemeanor or felony, deportation will be granted. However, in misdemeanor cases, the crime still affects the defendant. It can be considered a crime of moral turpitude.

Protective orders in domestic violence cases

Protective orders are a necessary document whose violation always leads to severe consequences. For example, in the case of immigration matters, violation of protective orders preventing domestic violence can result in the violator’s deportation.

The violation of such an order doesn’t need to be violent. A simple failure to comply with a court order is enough to begin deportation proceedings. As long as the conduct meets the following requirements:

• The violation of the mandate occurred after the immigrant was admitted to the United States.
• Occurring after September 30, 1996.

If you do not meet these requirements, deportation will not be possible, but it may lead to other charges. However, it is unlikely that without the above requirements, it will be possible to get severe charges beyond a warning.

What is a felony? When is a domestic violence crime considered one?

A felony is a significant crime with more severe penalties than a misdemeanor. It is characterized as corresponding to crimes that are considered more harmful or malicious. Typically, the difference between a misdemeanor and a felony is the amount of time you can spend in jail for one of these crimes.

In the case of a felony, the sentence is always more than one or two years in prison (if it corresponds to a prison sentence). And in the case of the misdemeanor, the sentence is always less than one year in prison (also in the case of a prison sentence).

In immigration terms, with a felony conviction, the immigrant would be losing the following privileges:

• They will not be able to get withholding of removal or asylum.
• Removal cancellation. They can be deported or get a removal without a plea.
• They may lose eligibility for the INA 212(h) Waiver of inadmissibility.
• The possibility of a voluntary departure is lost.
• Naturalization. They can’t become a US citizen.
• The possibility of obtaining a Green Card. They will no longer be able to acquire a permanent license in the country.
• The person also loses the ability to enter the United States legally.

It is advisable that if an immigrant defendant pleads guilty to any of these crimes, it is best to be careful. It is recommended to be sure of the sentence that the defendant will ultimately receive to avoid an aggravated felony.

In addition, an immigrant who enters the United States illegally with an aggravated felony conviction faces increased consequences for their crimes. These sentence increases can go as high as 20 years in prison.

Can moral turpitude affect immigration purposes?

Moral turpitude crimes have this particular label because of immigration purposes. It arises from the need to name certain crimes as problematic and undesirable for people who want to enter the country.

That is, crimes labeled as moral turpitude have this focal point in highlighting how malicious they are. This label highlights that they are undesirable and should be considered when making decisions about immigrants with previous charges and sentences.

Nonetheless, even under their importance, they do not have a clearly defined definition in the law. Vaguely, the most common definition is: “a particularly immoral, depraved act or one that violates the basic rights of others.”

Another frequent definition is: “a particularly immoral, depraved or directly injurious act, reckless and careless of the rights, obligations, and beliefs of others.” In other words, it could easily be called an inhumane act.

These definitions can be somewhat ambiguous, making it a complicated issue to address. Even so, these definitions can easily approximate the concept of domestic violence.

Domestic violence as a crime that involves moral turpitude

Indeed, many domestic violence offenses fall under the vague conceptualization of Crimes Involving Moral Turpitude or CIMTs. CIMT offenses can, except in a few cases, render an immigrant inadmissible to the United States. CIMT offenses can, with few exceptions, end up rendering an immigrant inadmissible to the United States.

Not absolutely all CIMT offenses have the ability to deport non-US citizens, but most do. Still, it is almost always possible to reduce the sentence and thus the likelihood of deporting the defendant.

Among other things, some notable CIMT offenses would be:

• Penal Code 261. Rape
• Penal Code 236. False imprisonment as a felony.
• Penal Code 273(d). Child abuse.
• Penal Code 243.4. Sexual battery.
• Penal Code 311.11(a). Child pornography.
• Any lewd acts and crimes of a sexual nature involving a minor.

Nevertheless, it is essential to clarify that not all CIMTs related to domestic violence refer to crimes of a sexual nature. For example, others, such as False imprisonment Penal Code 236, can also be named.

Can I avoid a deportation charge if I agree to domestic violence counseling?

It’s a possibility. It turns out that, for immigration law, crimes, even those with no answer or pleas of guilty, are recorded on a person’s record.

Even with a California Expungement, these crimes do not disappear from personal records if we talk about immigration purposes. It means that they will be considered when processing the person’s papers.

Therefore, before deciding to agree to domestic violence counseling, it is best to consider the consequences. A good lawyer will help you make that decision. However, it will always be a complicated decision to make.

Can I get a formal hearing before being deported from the United States?

If you disagree with the deportation or have an appeal to make, you still have a chance to appear in front of a formal hearing. With solid evidence and the legal help of an immigration lawyer, you may have a chance of re-entry.

Green Card or visa holders have the right to hear their appeals in front of a jury and a formal hearing. They also have the right to appeal an adverse decision at the Board of Immigrants Appeals.

Unfortunately, people in the United States illegally lack these rights and many others. It means they risk being deported if they have any legal problems.

The US Immigration and Customs Enforcement (ICE) can deport any illegal immigrant it wants without a hearing or appeal. Therefore, being in the US illegally is all that you need to be deported.

Is it possible to avoid being deported for a domestic violence charge?

The first recommendation would be not to get involved in domestic violence charges. However, this solution is overdue and ineffective. So instead, the idea is to appeal for a lesser sentence for the defendant to have a better chance of staying.

These types of trials can be very delicate. Nevertheless, there are many essential points that neither the attorney nor the defendant can miss, as they could end up in the worst-case scenario: the defendant being deported without the possibility of re-entering the United States.

That is why knowing to plead to a correct charge is essential. In addition, the correct pleading and handling of the defendant’s legal situation can lead to a more significant benefit for the defendant. It allows the defendant to reduce the risks of being deported or even incarcerated for a long time.

There are some charges whose sentences do not directly lead to the defendant’s deportation. For example:

• Penal Code 236: Misdemeanor false imprisonment.
• Penal Code 602: Trespassing. 
• Penal Code 242: Simple battery based on offensive touching.

Nonetheless, there is always the possibility that you will not be able to get a plea that does not create immigration problems for the defendant. In these cases, the best thing to do is to minimize such consequences and ensure they do not affect the immigration laws enough to trigger them.

If you are in this situation, we can help

Being in this situation is not easy, the nerves, fear, and anxiety that deportation can generate is undeniable. As we always say, the best option is to keep calm, even if it seems impossible. Why? Simple, being upset can worsen your situation, which means you are not thinking clearly.

The best option you can do is to contact us, you know perfectly well the commitment we have with you and your well being. We analyze your case, investigate it thoroughly and do everything possible to make your case successful without any deportation involved.

So, if you need a good immigration attorney who can help you, we offer you that helping hand you desperately require. Contact us today!