Is Domestic Violence a Deportable Offense?

by | Jun 4, 2019 | Immigration Law |

Is domestic violence a deportable offense? What if the prosecutor “reduces” the charge to simple assault?

Lawful permanent residents and temporary non-immigrant visa holders are subject to deportation and removal from the United States if they are convicted of certain crimes. Although many minor offenses will not result in deportation, a conviction for domestic violence can and often does.

If you are a non-citizen who is facing criminal charges, your defense lawyer must understand and advise you about the immigration consequences of any potential plea or conviction. If your defense lawyer does not know how a conviction will affect your immigration status, they have an obligation to consult with an immigration attorney who can advise you.

If you are facing deportation in SC, call the Myrtle Beach immigration lawyers at Coastal Law now. We can help you by representing you on your criminal charges, consulting with your criminal defense lawyer on immigration consequences, or representing you in immigration court.

Is Domestic Violence a Deportable Offense?

Domestic violence is a deportable offense for several reasons. It is specifically listed as a deportable offense in 8 USC Section 1227 of the Immigration and Nationality Act, it may also qualify as a deportable offense as a “crime of moral turpitude” or an aggravated felony, and you can be deported for violation of an order of protection.

Domestic Violence is a Deportable Offense

Section 1227 lists the types of convictions that can result in deportation, including domestic violence, stalking, and child abuse:

Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.

So, what is a crime of domestic violence?

What is a Crime of Domestic Violence?

Section 1227 defines a crime of domestic violence as any crime of violence against a current or former spouse, person you have a child with, or someone that you have lived with as a spouse:

For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

Okay, then what is a “crime of violence?” 18 USC Section 16 defines a crime of violence as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) 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.

If I’m charged with domestic violence, but my attorney negotiates a “reduced” charge of simple assault, can I still be deported or am I in the clear?

Is Simple Assault a Deportable Offense?

Although simple assault is not necessarily a deportable offense, assault is domestic violence for purposes of deportation proceedings if the alleged victim is a ” current or former spouse of the person… an individual with whom the person shares a child in common… [or] an individual who is cohabiting with or has cohabited with the person as a spouse.”

In 2009, the US Supreme Court held in US v. Hayes that a conviction for simple assault and battery is treated as a domestic violence conviction for purposes of federal gun laws when the alleged victim is a spouse, former spouse, or someone the defendant cohabited with. Although Hayes was about federal gun laws, the same analysis applies to immigration consequences.

If you are facing domestic violence charges, you cannot plead guilty to assault charges to avoid deportation proceedings – your charges must be dismissed, you must be acquitted, or you must plead guilty to a different offense that does not involve a crime of violence…

Can I Be Deported for an Order of Protection?

If a court issues an order of protection against you, that alone is not likely to result in deportation. If you are convicted for the criminal offense of violating the order of protection, however, that is a deportable offense that is specifically listed in Section 1227:

Any alien who at any time after admission is 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 that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

Other Reasons that Domestic Violence is a Deportable Offense

Domestic violence is also a deportable offense because it is considered a “crime of moral turpitude:”

Any alien who-

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

Depending on the facts of your criminal case, domestic violence may also be a deportable offense because it is considered an aggravated felony.

SC Immigration Lawyers in Myrtle Beach, SC

The Myrtle Beach immigration attorneys at Coastal Law understand the immigration consequences of criminal convictions and want to help you to avoid the often-harsh consequences of the US immigration system.

If you are facing deportation and need an immigration attorney in SC, Call now for a free consultation to discuss your case, by calling (843) 488-5000 or filling out our online form.

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