Till ICE Do Us Part: Immigration consequences of crimes against family members and children

by Farhad Sethna

Each week, I receive at least one phone call from a fellow attorney or legal aid provider posing the question: “I represent a client who is a non-citizen on a charge of domestic violence….what are the immigration consequences…?”  So if you have any clients who are not US citizens, please save this article for future reference.  You will also find related information on deportation and immigration issues on this website, www.immigration-america.com.

As background, the Immigration and Customs Enforcement (ICE) is the agency within the US Department of Homeland Security charged with detaining and “removing” (deporting) criminal aliens or violators of immigration law.

The IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act of 1996) made a conviction for domestic violence or violation of a protective order a deportable offense. The entire relevant sub-section is INA (Immigration and Nationality Act) § 237(a)(2)(E) [8 USC § 1227]:

Crimes of Domestic violence, stalking, or violation of protection order, crimes against children

(i) 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.  For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of title 18, United States Code) 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.

(ii) Violators of protection orders.—Any alien who at any time after entry 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 * * *

“Conviction” for immigration purposes is defined at INA § 101 (a)(48)(A):

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

Applying these two sections of the INA to the hypothetical non-citizen client who is charged with one of the enumerated offenses in INA 237(a)(2)(E), above, the choices for the criminal defense attorney become very clear: accepting guilt (“admitting sufficient facts to warrant a finding of guilt”) in order to qualify for a diversionary program (the mandatory diversion will constitute a “restraint on the alien’s liberty”) will trigger removal proceedings.  Being convicted after a trial certainly triggers removal, as does pleading guilty.

How will the ICE will find out about a criminal conviction and place your client in removal proceedings?  Sometimes, the sentencing court informs the ICE.  Sometimes your client’s ex-spouse or family member or friend inform the ICE.  Sometimes the client reveal any arrest or conviction information when applying for a future immigration benefit, for example, permanent residence (“Green Card”) or naturalization (citizenship).  Permanent Residency requires the client answer whether he or she was ever “arrested, cited, charged, indicted, fined or imprisoned for violating or breaking any law or ordinance”.  Naturalization asks an even more onerous series of questions, including “have you ever been placed in an alternative sentencing or rehabilitative program?” and the catch all “have you ever been arrested, cited or detained by any law enforcement officer (including INS and military officers) for any reason?”  Many removal cases are filed as a result of applicants unknowingly and honestly disclosing convictions for minor offenses decades ago.  Note that expungement is not recognized in immigration law, and all offenses, even those expunged, must be disclosed and listed.

The removal process: Once the ICE finds out about a “removable” alien, the ICE will apprehend the alien, serve him or her with a “Notice to Appear”, and depending on the nature of the crime, place him in mandatory detention or release him on bond.  The EOIR (Executive office for Immigration Review) then schedules a hearing on the charge of removal.

As I have written on prior occasions, the time to protect a client from removal is typically at the trial stage in the state or municipal court proceeding. Assuming, however, that the defense attorney and the prosecutor cannot arrive at a plea bargain that would remove the immigration-related elements of the charge, there may be no option other than to plea to the charges or take the case to trial.  If the alien is convicted or pleads, the alien becomes deportable.

Possible relief: the previously generous avenues for withholding of deportation and INA § 212(c) relief were severely curtailed under the IIRIRA.  Typically, a waiver of removability is limited to cancellation of removal and a couple of other provisions that are generally difficult to qualify for.  To qualify for cancellation of removal, the alien must have been a permanent resident for at least five years, resided in the USA for at least seven years, and not have committed an aggravated felony. INA § 240A (8 USC §1229b). “Aggravated felonies” under the INA are substantially different from those under state law, and are listed at INA § 101(a)(43) (8 USC § 1101).   Your client may also be eligible for relief under INA §212(h) (8 USC §1182).

If your client is not a permanent resident, cancellation is much harder to prove: residency in the USA for at least 10 years, and proof that the removal would cause “exceptional and extremely unusual  hardship”  to the alien’s US citizen or permanent resident spouse, parent, or child.  Removal is not considered “exceptional and extremely unusual hardship.”

However, under INA § 319(a) (8 USC § 1430), a non-citizen alien spouse may be naturalized even following a domestic violence conviction, if the alien and the US citizen spouse lived together for three years “in marital union” preceding the filing of the application for naturalization.  That is one exception that may work to your client’s advantage.

In conclusion, there is a significant risk of removal for commission of an offence involving domestic violence, violation of a TPO, or crimes against children.  There is very little relief available for aliens. While a domestic violence conviction – sadly – holds little deterrent value for a US citizen, it has enormous consequences for an alien.

Copyright, Attorney Farhad Sethna, 2005, All Rights Reserved.