What Are the Immigration Effects of Domestic Violence Convictions?
California is home to many illegal alien residents from around the world. When noncitizens face criminal charges, it often results in severe immigration consequences.
For example, a conviction for domestic violence can lead to a noncitizen facing deportation, being barred from re-entering the United States, and being ineligible for citizenship or a green card.
Immigration consequences related to domestic violence include incidents such as domestic battery, causing bodily injury to a spouse, child abuse, felony false imprisonment, child endangerment, stalking, and violating a restraining order.
Our California criminal defense lawyers can assist you in avoiding a conviction or negotiating a plea deal with the prosecutor for an offense that won't result in deportation.
Immigration and Nationality Act
The U.S. Immigration and Nationality Act (link) defines undocumented individuals who may face either voluntary or mandatory removal from the United States.
When an undocumented individual is taken into custody, the Department of Homeland Security (DHS) is notified, and an immigration hold may be placed to prevent their release.
While these holds are not always enforced in California jails, they indicate to authorities not to release the undocumented individual after serving their sentence. Instead, DHS will take them into federal custody and begin removal proceedings.
Domestic violence is defined as any act of violence committed against a current or former spouse, romantic partner, or someone with whom the defendant has a child.
Under immigration law, an act is considered a crime of violence if there was an attempted use of violence or threats of physical force, or if the offense was a felony involving a significant risk that physical force would be used to commit it.
A conviction for domestic violence can have severe legal repercussions and may also lead to significant immigration consequences, such as deportation, removal, or denial of naturalization, even if it's just a single offense.
Crimes Involving Moral Turpitude
The USCIS offers a list of specific criminal convictions that can lead to the deportation of undocumented citizens from the United States.
Although domestic violence is not explicitly listed, certain domestic violence offenses are regarded as crimes involving moral turpitude due to the nature of the behavior needed for conviction.
In some instances, the conduct that results in a domestic violence conviction might be classified as an aggravated felony, which can lead to removal proceedings.
Any crime in California that could result in a sentence of one year or more may be classified as a crime of moral turpitude for immigration purposes.
This is important because nearly all domestic violence convictions, including misdemeanors, carry a potential sentence of up to one year in county jail. Consequently, under the law, any domestic violence conviction can result in deportation and render an undocumented individual inadmissible to the United States.
Other Moral Turpitude Crimes
The following crimes of domestic violence also involve moral turpitude:
- Penal Code Section 311.11 - Child Pornography
- Penal Code Section 647.6 - Child Molestation
- Penal Code Section 288 - Lewd Acts with a Minor
- Penal Code Section 261.5 - Statutory Rape
- Penal Code Section 243.4 - Sexual Battery
- Penal Code Section 261 - Rape
Deportation Hearing Concerning Domestic Violence
If you are a lawful permanent resident, commonly called a "green card" holder, or if you are in the United States on a visa, you are entitled to a formal hearing before an immigration judge prior to any removal from the country.
Additionally, you have the legal right to appeal any unfavorable decision to the Board of Immigration Appeals (link).
If you are in the United States unlawfully, you do not have a legal right to this formal hearing and can be deported or removed from the country by U.S. Immigration and Customs Enforcement (ICE) (link) because you are here illegally.
How to Avoid Deportation
Avoiding a domestic violence conviction is the most effective way to prevent deportation from the United States. In other words, if you are not convicted of a charge that qualifies you for removal under immigration law, you will not face deportation.
One way to prevent a domestic violence conviction is to agree to a plea bargain for a lesser charge. However, it's important to remember that you must plead guilty to a charge that does not have negative immigration consequences if you are unlawfully present in the United States, including:
- Penal Code Section 242 - Battery
- Penal Code Section 602 - Trespassing
- Penal Code Section 236 - False Imprisonment (misdemeanor)
Note that it might be possible to accept a plea offer without any immigration consequences or one that minimizes immigration risks. Therefore, consulting with our California criminal defense lawyers is essential to carefully review any plea offers.
There are cases where, even after a conviction, we can help you seek post-conviction relief (such as a writ of habeas corpus) or work to have your conviction downgraded to a misdemeanor.
Why You Need A Defense Lawyer
It's crucial to recognize that a misdemeanor domestic violence conviction can still trigger removal proceedings. This implies that if you've been charged with domestic violence, there's a genuine risk of deportation from the United States.
Moreover, a conviction and subsequent deportation could also result in denial of future citizenship applications.
The impact of a domestic violence conviction on undocumented citizens is significant. If you're accused of such an incident, it's important to consult with our experienced criminal defense lawyers to understand your options.
We must carefully review all the details of your case to develop an effective strategy for achieving the best possible result. Contact Cron, Israels & Stark for a case review.
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