Domestic abuse and deportation: Two examples

This piece discusses four situations the government could deport an immigrant accused of domestic abuse.

When criminal law and immigration law intersect, a client is often at a difficult crossroads. Federal immigration laws often exacerbate the consequences of state-law violations and create a situation that can be difficult for an inexperienced attorney to navigate. This is particularly true when it comes to allegations of domestic abuse. The following primer will provide some general guidance on two of the more common situations that arise in this area of law in the United States.

Situation #1: Conviction of a crime of domestic violence. In order for the government to successfully call for deportation in these cases, the underlying act itself must generally be a crime of violence. This means the offense must have as "an element the use, attempted use, or threatened use of physical force against the person or property of another." Generally, force here means a violent or aggressive action. This definition can include convictions for kidnapping, battery, burglary or false imprisonment. The crime must also have as an element a qualifying domestic relationship, in order for the conviction to lead to deportation. That relationship can include a current or former spouse, an individual with whom the person shares a child, or the presence of a cohabitating relationship.

Situation #2: Conviction of stalking. A conviction for stalking can also lead to deportation.

It is important to note, however, that there have been instances when a conviction for stalking has not led to deportation. In the Ninth Circuit, for example, courts have found that California's stalking law lacked a necessary element - the intent to cause fear of bodily injury or death. As it stood, it did not rise to the level needed to warrant deportation. Of course, other states have a stricter definition that likely rises to the level intended by federal law. Massachusetts state law, for example, defines stalking as a willful and malicious act that knowingly places the other in "imminent fear of death or bodily injury." That would certainly qualify.

Other domestic abuse allegations can also lead to deportation. A conviction of a crime involving child abuse, child neglect or child abandonment, or the violation of a domestic-violence restraining order could also serve as grounds for deportation.

An overriding concern is that the United States government can always argue for deportation as a result of the commission of a crime of "moral turpitude." This is allowed when an immigrant has been convicted of a crime involving moral turpitude within five years after his date of admission - or ten years if a lawful permanent resident - and he is convicted of a crime that carries a potential prison sentence of one year or longer. A domestic violence-related offense that carries a potential prison or house-of-correction sentence of a year or longer would likely meet the definition of a crime of moral turpitude.

The collateral consequences that accompany criminal charges are serious. Criminal defense strategies can help reduce the risk of deportation. Contact an attorney experienced in criminal with access to resources that take into account the nuances of immigration law to discuss your options.