What is a Crime of Domestic Violence (in some jurisdictions outside of the 2nd circuit and 5th circuit if the victim was a current or former spouse or similarly situated individual)?

The Immigration and Nationality Act defines “crime of domestic violence” as any “crime of violence” as defined in 18 U.S.C. 16 (see below) against a person committed by:

  • a current or former spouse of the person,
  • an individual with whom the person shares a child in common,
  • an individual who is cohabiting with or has cohabited with the person as a spouse,
  • 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
  • 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.

“CRIME OF VIOLENCE” DEFINED — The definition of “crime of violence” in 18 U.S.C. 16 includes “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Consequences of Crime of Domestic Violence (in some jurisdictions outside of the 2nd circuit and 5th circuit if the victim was a current or former spouse or similarly situated individual) conviction

  • Deportable
    • Deportable if:
      • A noncitizen is convicted at any time after entry of a crime of domestic violence, a crime of stalking, a crime of child abuse, child neglect, or child abandonment, or a violation of an order of protection.
        • NOTE: A conviction or violation occurring before October 1, 1996 does not trigger deportability under this ground of deportation; however, note that a prior conviction may still trigger deportability under one of the other grounds of deportability.
          • [See Sec. 350(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. 104-208, Division C, 110 Stat. 3009-546]
        • WAIVER: Under certain circumstances, the crime of domestic violence, stalking, and violation of order of protection deportation grounds may be waived when the individual himself or herself has been battered or subjected to extreme cruelty and is not and was not the primary perpetrator of violence in the relationship.
          • The Immigration Judge may so waive deportability under these grounds upon a determination that the individual was acting in self-defense; the individual was found to have violated a protection order intended to protect him or her; or the individual committed, was arrested for, was convicted of, or pled guilty to committing a crime that did not result in serious bodily injury and where there was a connection between the crime and the individual’s having been battered or subjected to extreme cruelty (see INA 237(a)(7)(A), 8 U.S.C. 1227(a)(7)(A)).
        • NOTE REGARDING VIOLATION OF A PROTECTION ORDER: A noncitizen would be deportable if a court determines that s/he has violated the relevant portion of a protection order issued by the court to protect another person against credible threats of violence, repeated harassment, or bodily injury.
          • The term “protection order” is defined as any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding. [See INA 237(a)(2)(E)(ii), 8 U.S.C. 1227(a)(2)(E)(ii))]

Disclaimer

This calculator is not designed to provide legal advice over the Internet. Legal advice is dependent upon the specific circumstances of each situation. The information provided here is targeted toward collateral consequences in New York. The law varies from state to state, so that some information provided herein may not be correct outside New York State. In addition, immigration consequences which involve federal law may vary from one federal jurisdiction to another. While every effort is made to keep the content on this site current, the information contained herein is not guaranteed to be up-to-date. Therefore, the information provided herein cannot replace the advice of competent legal counsel licensed in your state.

Also, in the interest of making sure that defendants are aware of all possible risks, the Calculator may warn of probable or possible potential negative consequences even where there may be good arguments that conviction of a particular offense should not trigger these consequences. A skilled advocate may be able to overcome some of the potential consequences. Therefore, the information provided through the Calculator should not be taken as an absolute limitation on what such advocacy might achieve.

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