New York Lawyer's Legal Updates

Domestic Violence Conviction: Immigration Consequences

Author: New York Immigration Lawyer Alena Shautsova

A conviction of domestic violence makes a person removable, but not inadmissible. In other words, if one is a lawful permanent resident and is convicted of domestic violence, he/she can be removed (deported). However, if one is a visa holder, or a person out-of-status, without status and is applying for an adjustment of status or an immigrant visa, his/her application will not be denied due to the conviction itself.

The tricky part here, however, is what can be considered a conviction of domestic violence. New York Penal Law, for example, does not have an article of the crime of domestic violence. However, what makes one’s conviction, one of domestic violence is the special relationship between the offender and the victim. So, for example, one convicted of harassment may be regarded as convicted of domestic violence, if the harasser is a partner, husband/wife, parent/etc. of the victim.

For Immigration purposes, however, a conviction from a criminal court may have to undergo a special analysis before it is determined that a State law conviction corresponds to the Federal counterpart. It is true for crimes of moral turpitude, for example, or crimes of violence, or crimes related to a controlled substance. In all these cases, in Immigration court, a judge would have to use categorical or modified categorical approaches. But it is not true for a crime of domestic violence.

In a recent case, the Board of Immigration Appeals held that whether a violation of a protection order renders a noncitizen removable under INA §237(a)(2)(E)(ii) is not governed by the categorical approach, even if a conviction underlies the charge; instead, a judge should consider the probative and reliable evidence regarding what a state court has determined about the noncitizen's violation. Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017). The court stated that for domestic violence removability to be applied, conduct, and not the statute under which the person was convicted needs to be analyzed. The court stated that with regard to the conviction of the violation of an order of protection:

An Immigration Judge should decide (1) whether a State court “determine[d]” that the alien “has engaged in conduct that violates the portion of a protection order that involve[d] protection against credible threats of violence, repeated harassment, or bodily injury” and (2) whether the order was “issued for the purpose of preventing violent or threatening acts of domestic violence.” Section 237(a)(2)(E)(ii) of the Act.

The BIA sent a clear message to all those who have convictions that may be regarded as the ones of domestic violence: now, it will be easier to establish their removability then before.

If you have questions regarding Immigration consequences, please contact us at 917-885-2261 or at office@shautsova.com.

20 November 2017
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