Immigration Laws and Criminal Convictions
Under United States law, an immigrant can lose their legal status if they are convicted for certain types of crimes, particularly for aggravated felonies and/or crimes involving moral turpitude. Domestic violence charges frequently fall into one or both of these categories, and that’s why a domestic violence conviction could threaten your legal status as an immigrant. From an immigration standpoint, any domestic violence charge that results in a prison sentence of one year or more classifies as an aggravated felony. Examples of DV crimes involving moral turpitude may include, but are not limited to:
- Sexual battery/assault
- Lewdness
- False Imprisonment
- Child abuse, abandonment, or neglect
What Happens to Your Immigration Status if You Are Convicted?
Will you be immediately deported if you are arrested for, or convicted of, an eligible domestic violence crime? Not usually—not right away. What typically happens is local law enforcement and/or the courts will communicate with the U.S. immigration authorities about your case. Immigration will then put a “hold” on your status while your case moves forward. If you’re convicted and sentenced to jail/prison, the “hold” means that once your time has been served, instead of being released, you may be remanded to U.S. immigration custody. From there, you’ll attend an immigration hearing to determine your fate. At that point, you may face any/all of the following penalties:
- You may be deported.
- You may be declared ineligible for citizenship.
- If you have a Green Card or a visa, the card/visa may be revoked.
- If you are applying for a Green Card, your Green Card may be denied.
- If you were seeking asylum in this country, you may be denied asylum.
- You may be barred from lawfully re-entering the United States.
Bear in mind that this process may take some time depending on the immigration caseload—but in a majority of cases for immigrants, a criminal conviction for domestic violence eventually leads to deportment at worst and denial of citizenship at best.
The “Fast-Track” to Deportation
There are two exceptions to the process we’ve described above, which could accelerate the deportation process. These are:
- If you are undocumented. If you entered the country outside the legal channels and are living here with no official immigrant status, you may be subject to immediate deportation as soon as you are released from jail.
- If you violate a protective order. The law stipulates that any non-citizen, documented or undocumented, who violates a protective order may be subject to deportation, even if no violence occurred as a result. So if your significant other obtains a temporary restraining order against you and you violate that order, you could be deported immediately, even if the charge against you was a misdemeanor offense.
What Happens If I Try to Re-Enter the Country after Being Deported for a Felony Conviction?
For standard deportations, you’ll have to wait at least 5, 10, or 20 years before applying to re-enter the United States—unless you have been declared ineligible for readmission, in which case you may never be allowed back. You may be able to apply for a waiver of inadmissibility which would allow you back into the country legally—but for those convicted of aggravated felonies, obtaining such a waiver is extremely rare. As for attempting to re-enter the country illegally, the standard penalty for doing so is two years in prison. But if you were convicted of domestic violence (aggravated felony), the penalty for illegal re-entry jumps to 20 years in prison.
Avoiding Deportation and Other Immigration Penalties Related to Domestic Violence
If you’re an immigrant and you’re arrested on domestic violence charges, are you guaranteed to lose your legal status and/or be deported? Not necessarily—but the stakes are definitely higher for you if you are convicted of anything more serious than a misdemeanor offense. Likewise, pleading guilty to a felony domestic violence charge won’t typically give you any leniency with the immigration authorities. That being said, there may be some pathways to save your immigration status if you’re arrested for domestic violence. These include:
- Having the charges dropped/dismissed. If your defense attorney can show that there is insufficient evidence to obtain a conviction, he may be able to negotiate with prosecutors and/or the judge to have the charges dropped.
- A plea deal with reduced charges. If you’re facing domestic violence charges at the aggravated felony level, your attorney may be able to negotiate a plea deal where you plead guilty to a lesser misdemeanor charge. This would potentially save your immigration status.
- An acquittal by the jury. Your immigration status is usually jeopardized only by a conviction. If you go to trial and the jury turns in a verdict of not guilty, you avoid a criminal conviction.
With all three of the strategies above, note that the end goal is to avoid being convicted of a DV crime that is considered an aggravated felony or crime involving moral turpitude. Once conviction happens, your fate as a United States immigrant is in the hands of the immigration authorities. For that reason alone, it’s essential to have a skilled criminal defense attorney in your corner if you are an immigrant who has been charged with domestic violence. We are here to help. Call our office today for a free case evaluation.