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Dangers Of Domestic Violence Convictions For Immigration Purposes

Author: New York Deportation attorney Alena Shautsova

Domestic violence chargers are probably the most common ones. They can originate from both Family or Criminal courts. For example, in New York, a person may obtain an order of protection from a Family or from a Criminal court. If a family member is found in violation of an order of protection from Family court, that family member (if not a US citizen) may face deportation chargers...

Domestic violence convictions make one deportable. It means that one may still remain in the US if he/she is applying for a adjustment of status and seeks to “wipe out” the domestic violence conviction that application.

The danger of the domestic violence convictions lies in Immigration definition of conviction and in Immigration approach as to what constitutes a domestic violence. First, as a general matter, any admission or finding of guilt would be considered a “conviction” for Immigration purposes. It even might be true for adjudication in contemplation of dismissal in New York, if the guilty plea includes admission of guilt. Second, there is no clear definition of what is a domestic violence. Rather, it is a special relationship between a victim and the perpetrator that make a conviction one of a domestic violence. The term “crime of domestic violence” in section 237(a)(2)(E)(i) of the Act 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 who 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.

In its recent decision, Matter of Estrada, 26 I&N Dec. 749 (BIA 2016), the Board of Immigration appeals held that in analyzing whether a conviction is for a crime of domestic violence under INA §237(a)(2)(E)(i), the circumstance-specific approach should be applied to determine the domestic nature of the offense. It means that all probative evidence, and not only documents that establish record of conviction can be viewed to determine if a crime is one of domestic violence. Under the circumstance-specific approach in immigration proceedings, all reliable evidence may be considered, including documents that comprise the formal "record of conviction". See Matter of Garza-Olivares, 26 I&N Dec. 736, 742 n.4 (BIA 2016); Matter of Babaisakov, 24 I&N Dec. 306, 320−21 (BIA 2007); see also Nijhawan, 557 U.S. at 41−43; Bianco, 624 F.3d at 272−73 (stating that the Government may prove the domestic nature of an offense by "using the kind of evidence generally admissible before an immigration judge"). Such evidence may include police reports and records, provided that the information in the report is reliable. See Matter of Grijalva, 19 I&N Dec. 713, 721−22 (BIA 1988) (holding that police reports are admissible in immigration proceedings and that their contents are properly considered absent a claim that the respondent’s statements were made involuntarily or that information was obtained as the result of egregious police misconduct); cf. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1349−50 (11th Cir. 2010) (finding that, absent corroboration, police reports were not sufficient evidence to establish removability where the “arrest reports state the police officer][s’ conclusions... rather than recording their observations of facts to show guilt”). These line of cases rest and reaffirms by the U.S. Supreme Court decision United States v. Hayes, 555 U.S. 415 (2009) where the Court held that the domestic nature of a conviction for a “misdemeanor crime of domestic violence” need not be an element of the offense and may, instead, be found by a factual inquiry. Hayes, 555 U.S. at 426. The real damager of domestic violence charge is that it is extremely difficult to beat in Immigration court, as demonstrated by the cases cited above, the court might consider any probative evidence to establish elements necessary to deport a non-citizen. The good news is that in some situations it is possible to “clean” the record with certain applications.

31 May 2016
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