On of the most common questions our office comes across is how a civil protective order or a criminal charge involving family violence effects an immigrant’s status. The answer is complex, and we will tackle it below.
DEFINITION OF A CONVICTION
Under the Immigration and Nationality Act (INA), the existence of a “conviction” for immigration purposes is governed strictly by federal law, which frequently diverges from state-level definitions. Pursuant to INA § 101(a)(48)(A), a conviction is established when (a) A court enters a formal judgment of guilt, or, (b) even without a formal guilty plea, the Court establishes that the noncitizen is guilty, the noncitizen has admitted sufficient facts to warrant a finding of guilt, the immigrant has entered a nolo contendere plea and the Court has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty, such as probation, fines, court costs, community service, or a suspended sentence.
State-level rehabilitative actions (expunctions, deferred adjudications, conditional discharges, or first-offender programs that subsequently dismiss or vacate a conviction) do not erase the conviction for immigration purposes unless the action was based on a substantive defect or constitutional error in the underlying criminal proceeding.
By contrast, a true pre-plea or pre-adjudication diversion program that requires no plea, finding, or admission of guilt, and has no judicially imposed penalty, falls outside the federal definition and does not constitute a conviction.
CONSEQUENCES OF CIVIL PROTECTIVE ORDER FOR VISA HOLDERS
If a civil protective order is issued against a visa holder, but he is not facing deportation, and no violation of the civil protective order occurs, then he is not deportable.
However, the visa holder may trigger deportation if a court (civil or criminal) determines he has – after the protective order is in place – violated the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury. INA § 237(a)(2)(E)(ii). No criminal conviction is even necesary; an Immigration Judge will evaluate the case under a circumstance-specific approach using any reliable evidence of the state court’s determination. INA §237(a)(2)(E)(ii); Sunuwar v. Att’y Gen. of U.S., 989 F.3d 239 (3d Cir. 2021); Alanis-Alvarado v. Mukasey, 558 F.3d 833 (9th Cir. 2009); Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009).
Even the slightest violation can be a trigger. The Board of Immigration Appeals (BIA) has ruled that a violation of a “no-contact” or “stay-away” provision of an civil protective order is sufficient to trigger deportability, even if the violating act itself did not involve physical violence (for example, making a single non-authorized phone call or sending non-threatening letters) Sunuwar v. Att’y Gen. of U.S.
CONSEQUENCES OF A CRIMINAL CHARGE FOR DOMESTIC VIOLENCE FOR VISA HOLDERS
Crime Involving Moral Turpitude
A visa holder is deportable if convicted of a single Crime Involving Moral Turpitude (CIMT) committed within 5 years of admission, provided the offense carries a maximum possible sentence of one year or longer under INA § 237(a)(2)(A)(i). A CIMT may include family violence, although it is on a case-by-case basis. Immigration authorities and courts look at the exact wording of the state law rather than just the label of the charge. Misdemeanors involving intentional bodily injury, severe harm, or aggravating factors against a family member are often classified as a CIMT. A simple domestic assault without injury or involving minimal unwanted contact may not always rise to the level of a CIMT, but an offense involving actual harm or battery frequently does.
There are exceptions. The visa holder can avoid triggering deportation by qualifying for the Petty Offense Exception, which requires that (1) only one CIMT has ever been committed, (2) the maximum possible sentence for the offense does not exceed one year, and, (3) the actual sentence of imprisonment imposed was six months or less. INA §212(a)(2)(A)(ii)(II). If the misdemeanor carries a maximum possible penalty of exactly one year (even if the actual sentence imposed is probation or zero jail time), the exception does not apply.
Additionally, convictions for two CIMTs at any time after admission – not arising from a single scheme of criminal misconduct – makes one deportable. INA § 237(a)(2)(A)(ii).
Crime Defined as a Felony Under INA
A visa holder is deportable if convicted of any crime which classifies as felony under INA § 101(a)(43), even if it is labeled a misdemeanor by the criminal court; the only requirement is that the possible sentence may be a year or more. In Texas, this means that a visa-holder convicted of a Class A Misdemeanor (up to a year in jail) can be placed into deportation proceedings.
Crime of Domestic Violence
Finally, even if a specific family violence misdemeanor is not categorized as a CIMT or a felony, federal law lists a separate, dedicated ground of deportability for any non-citizen convicted of a general “crime of domestic violence” under INA § 237(a)(2)(E).
Broad Discretion
Finally, it should be noted that the Department of State has broad statutory authority under INA § 221(i) to revoke a nonimmigrant visa for almost anything. In practice, such revocation only occurs if the visa holder is already under scrutiny by the various immigration authorities, or, the criminal action satisfies the definition of a felony under INA § 101(a)(43), or, falls under the CIMT.
CONSEQUENCES OF CIVIL PROTECTIVE ORDER FOR LPRs
For a lawful permanent resident (“LPR”), an issuance of a civil protective order with or without finding of family violence and without a violation after the fact is not a statutory ground of deportability.
However, as with a visa holder, if the LPR violates the injunctions of a protective order (such as a stay-away or no-contact provision) regardless of a finding of family violence or not in the order itself, he is deportable under INA § 237(a)(2)(E)(ii). Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).
CONSEQUENCES OF A CRIMINAL CHARGE INVOLVING DOMESTIC VIOLENCE FOR LPRs
The consequences for a criminal conviction involving family violence for an LPR are for the most part identical as they are for a visa holder. In addition, the conviction may act as a barrier to naturalization.
CONSEQUENCES OF CIVIL PROTECTIVE ORDER FOR ASYLUM SEEKERS
The mere issuance of a civil protective order with no finding of family violence does not trigger any of the mandatory statutory bars to asylum under INA § 208(b)(2)(A) or withholding of removal under INA § 241(b)(3)(B). However, the mere existence of a civil order without a family violence finding is a negative factor in one’s asylum application. The underlying civil allegations (even if unproven or dismissed) will be scrutinized during the asylum interview or individual hearing. Thankfully, under 8 C.F.R. § 1240.8(d), the Immigration Services Officer (ISO) or Immigration Judge (IJ) has some discretion.
A civil protective order containing a formal finding of “family violence,” “domestic abuse,” or “extreme cruelty” is still a civil court order and does not constitute a criminal conviction under INA § 101(a)(48)(A), thus technically not barring asylum. However, even without a criminal conviction, a civil court’s formal finding of family violence represents a devastating negative discretionary factor that makes a favorable grant of asylum highly improbable. Under the landmark case of Matter of Jean, 23 I&N Dec. 373, 384–85 (AG 2002), aff’d, Jean v. Gonzales, 452 F.3d 392, 396–98 (5th Cir. 2006), there is an exceptionally strong presumption against granting asylum for any individual who has committed violent or dangerous conduct, which includes family violence. Immigration Services Officers (ISOs) and Immigration Judges (IJs) are “highly disinclined” to grant discretionary asylum to such applicants. Id.
Additionally, if a court determines that the applicant has violated the civil protective order – even a non-violent “no-contact” or “stay-away” provision – the violation is also treated as a major negative discretionary factor. The Board of Immigration Appeals (BIA) and federal circuits have repeatedly held that even a single unauthorized, non-violent contact (such as a telephone call or sending non-threatening letters) constitutes a valid violation of a protective order. Furthermore, a pattern of willful non-compliance with a court order can often lead to a discretionary denial of asylum under the totality of the circumstances test established in Matter of Pula, 19 I&N Dec. 467 (BIA 1987).
CONSEQUENCES OF CRIMINAL CONVINCTION INVOLVING DOMESTIC VIOLENCE FOR ASYLUM SEEKERS
Under INA § 208(b)(2)(A)(ii), an applicant is ineligible for asylum if they have been convicted of a “particularly serious crime” or an aggravated felony. In addition, for non-aggravated felonies and misdemeanors, adjudicators conduct a case-by-case analysis using the “Frentescu” and “N-A-M” factors (nature of the offense, circumstances, sentence, and threat of danger). Matter of N-A-M, 24 I&N Dec. 336, 342 (BIA 2007); Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982). Realistically, most family violence convictions fail this threshold.
If asylum is barred or likely would not be granted, the asylum seeker should consider concurrently arguing relief from deportation under Convention Against Torture (CAT). CAT, however, has a much lower success rate.
CONCLUSION
It is important to note that for immigration law, exceptions and nuances dramatically change how a rule is applied in any given case. Especially in immigration law, policies shift, court decisions reshape interpretations, and agency practices and administration orders evolve the field quickly. Because of this constant change, consult directly with a qualified immigration attorney to understand how the law applies to your specific circumstances.
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