For a non-U.S. citizen, a domestic violence arrest is not just a criminal issue; it is a threat to your existence. California law classifies domestic violence crimes according to the severity of physical interaction. However, the federal immigration officers interpret them through the unforgiving Immigration and Nationality Act (INA).
Domestic violence is a crime of violence against a current or former spouse, cohabitant, or someone with whom you have a child. This offense triggers an automatic review by the Department of Homeland Security (DHS).
This blog discusses the manner in which domestic violence convictions lead to forced removal, permanent inadmissibility, and the loss of the American dream. You learn the categorical approach the federal courts follow to determine whether a state conviction is a deportable offense under federal law.
The Intersection of California Domestic Violence Charges and Federal Immigration Status
Once you are accused of domestic violence in California, you are instantly placed in a two-track legal system where the outcomes of the state criminal case are directly determined to dictate your federal immigration status. The threat of deportation escalates once your fingerprints are scanned during the booking process at a local police station or county jail. A federal program called Secure Communities automatically exchanges your biometric information between the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI). This interoperability means that Immigration and Customs Enforcement (ICE) can be notified of your arrest before you are arraigned or have a chance to hire a defense lawyer.
California and federal immigration law collide because the two systems do not define crimes in the same way. Sections of the California Penal Code, such as PC 273.5, which addresses corporal injury to a spouse, are written in general terms to encompass a broad range of behavior. However, the Immigration and Nationality Act (INA) Section 237(z)(2)(E)(i) stipulates specifically that any non-citizen who is found guilty of the commission of a crime of domestic violence is deportable.
The risk is that what an immigration judge may view as a minor plea bargain, a local prosecutor may view as an offense warranting banishment. You may think that the outcome of your case, in which you are charged with a misdemeanor, placed on probation, and fined, is a win because you will not spend time in jail. However, when such a misdemeanor is included in the federal definition of a crime of violence, the absence of jail time does not matter to the immigration implications.
Moreover, the law is complicated by the notion of “crimes of violence” under Title 18 of the United States Code, Section 16. In California, a conviction that involves the use, attempted or threatened use of physical force on the person or property of another makes it a deportable offense. This definition is strictly followed, and the federal courts do not focus on the name of the California charge; instead, they consider the actual components of the statute that you violate.
If the conviction record confirms that you used force against a protected individual, say a spouse or a cohabitant, you could be subject to domestic violence deportation under California laws.
Deportability vs. Inadmissibility
To navigate this crisis, you need to distinguish between two notions in immigration law that, though equally devastating, are distinct: deportability and inadmissibility.
- Deportability
Deportability is the ability of the government to strip you of your present legal status and physically remove you from the US. If you are on a visa, have Temporary Protected Status, or are even a Lawful Permanent Resident and have a green card, a domestic violence conviction is the legal foundation to have your status stripped and render a removal order.
- Inadmissibility
On the other hand, inadmissibility is a deterrent to future gains. Should you be considered inadmissible on account of conviction, you are, by law, denied any reentry into the country if you leave it, and you are forever barred from changing your status to a permanent resident or a naturalized citizen.
The difference is essential because different crimes have different effects. Although a domestic violence conviction practically renders you deportable, it can also be considered a Crime Involving Moral Turpitude (CIMT), which leads to inadmissibility. This is a trap that the unsuspecting fall into, as you may be struggling to stay in the country so as not to be deported. You are stuck in the U.S. borders and can never travel to see family members in other countries due to the fear of being refused to be allowed back into the country and never becoming a U.S. citizen.
To the undocumented, inadmissibility is a roadblock that will always remain to any future legalization reform or relief that may be offered.
Why a “No Contest" Plea Triggers Mandatory Removal
Defendants in California criminal courts hold a dangerous misconception that it is safer to plead “no contest” (nolo contendere) than to plead guilty, since it does not explicitly admit liability. Although this distinction is possibly relevant in civil liability proceedings, it is potentially dangerous in immigration law.
The definition of a conviction under the INA is much broader than in the criminal court. Under federal law, a conviction occurs when a court issues a formal verdict of guilt or, more importantly, when the adjudication of guilt is withheld. However, the noncitizen has acknowledged sufficient facts to justify a conviction, and the judge has imposed some penalty, punishment, or restriction on the alien's liberty.
By pleading guilty to a domestic violence charge in Los Angeles and entering a no-contest plea, you risk deportation. It does not matter to the immigration court that you did not utter the word "guilty." They consider that the state court has accepted your plea and sentenced you to jail time, probation, or a fine, along with a batterer intervention program.
Even the so-called diversion programs that keep your record clean may be fatal, since they may force you to plead or admit facts on the record and then start the program. If you fail the program or the immigration judge reviews the transcript and finds that you admitted the action, the admission is considered a conviction under immigration law, triggering the automatic removal process despite the ultimate dismissal in state court.
The Implications for Legal Permanent Residents (Green Card Holders)
A green card offers a false sense of security, particularly regarding criminal convictions. Lawful Permanent Residents (LPRs) cannot escape the immigration repercussions of domestic violence; they have the most to lose. Being an LPR, you are liable to the same reasons for deportability as any other non-citizen.
A conviction of a domestic violence crime or a CIMT permits the government to subject you to removal proceedings, depriving you of the residency position. Moreover, a sentence kills your chances of proving that you possess “good moral character," which is a statutory requirement for naturalization.
The impact extends to your capacity to find reprieve against deportation. Longtime residents usually use a relief called Cancellation of Removal of Permanent Residents, which enables an immigration judge to permit you to remain even after a conviction, provided that you fit certain requirements.
However, as long as your domestic violence conviction as an aggravated felony is treated under the immigration law, you are not statutorily eligible to receive this relief. You are also denied asylum and voluntary departure. This is to imply that in the case of a green card holder, a poorly handled domestic violence case in the California Superior Court may lead to deportation with no legal option for the immigration judge to exercise mercy or consider your family background, your work record, or the time you have lived in the US.
Classification of California Crimes
Your charge is classified in a particular way, and this is the point on which your immigration case is based. Federal authorities split California crimes into:
- Crimes of Violence
- Crimes Involving Moral Turpitude (CIMT)
A CIMT refers to behavior that is inherently low, despicable, or depraved and not in conformity with the generally accepted standards of proper conduct and the obligations between individuals. When it comes to domestic violence, crimes where there is intent to harm a person under protection are virtually considered CIMTs. For example, PC 273.5, which prosecutes the willful infliction of corporal injury upon a spouse, is a perfect CIMT since it involves a deliberate act that leads to a traumatic condition.
Not every domestic violence charge is, however, equal. Domestic Battery under PC 243(e)(1) is a crime of general intent that does not require a visible injury. Although it is a deportable offense of domestic violence in the INA, in some instances, with the particular history of conviction, a skilled defense counsel can contend that it is not a CIMT.
This difference is crucial to the issues of inadmissibility. Crimes with specific intent to terrorize, for example, criminal threats of PC 422, are, on the other hand, nearly universally considered CIMTs under "turpitude," as they entail a vicious intent to terrorize the victim.
The Forensic Definition of "Physical Force" in Immigration Court
The definition of physical force is contested in both forensic and legal contexts in immigration proceedings. Cases like Leocal v. Ashcroft and Johnson v. United States have made it clear that “violence” involves the application of violent physical force. That means a force capable of inflicting physical pain or injury on another individual. If the record of your conviction fails to show that you used violent force, you can argue that your criminal offense is not a crime of domestic violence, and you should not be deported.
For example, a conviction of simple battery, which entails only an offensive touching, like grabbing a wrist or pushing, could be defended as failing to qualify as violent physical force under federal law. This, however, needs a clean conviction record.
When the police report, which is the forensic account of the incident, shows that there was punching, kicking, or the use of a weapon, and you acknowledge that report as the true factual basis of your plea, you have already acknowledged violent force. You should make sure that the written documents that the immigration judge is allowed to review do not include admissions of violent force.
This includes bargaining a plea in which the factual foundation is thoroughly sanitized, or only to non-violent behavior, so that the conviction is not so evident that it can be demonstrated with clear and convincing evidence that the government can prove deportability.
When Stalking and Restraining Order Violations Lead to Deportation
In addition to physical assault, the federal law expressly mentions stalking and breach of protective orders as reasons to deport defendants.
According to California PC 646.9, stalking is a willful, malicious, and repeated act of following or harassing an individual and threatening them with credible intent to cause them reasonable fear for their safety. Since it is a crime that entails a reasonable risk of injury, immigration authorities vigorously prosecute it as a domestic violence crime, as well as a CIMT. The intent element, which is the particular wish to make people fearful, makes this charge especially hard to challenge in immigration court after a conviction.
Also, according to PC 273.6, a breach of a domestic violence restraining order (DVRO) is a deportable offense if the court concludes that your breach entailed a threat of violence or repeated harassment. Even non-violent underlying conduct can result in deportation for violating a protective order.
For example, if the order forbids any form of contact and you send a text message, that is a breach. Although a text message in itself may not be considered a deportable offense, if the immigration court finds that the violation was one of a series of harassments of a protected individual, then you are in trouble.
How Sentencing Transforms Misdemeanors into Aggravated Felonies
The “One-Year Rule” is among the most dangerous pitfalls in the intersection of criminal and immigration laws. The “crime of violence” is an aggravated felony under the federal immigration law if the sentence was one year or more. An aggravated felon severely impacts the status of the non-citizen, as they:
- Are to be deported
- Can never be eligible to become a citizen
- Virtually cannot obtain any help, not even asylum
The trap lies in how California handles misdemeanor sentencing. Under California law, a misdemeanor carries a maximum sentence of 364 days, courtesy of new legislation specifically crafted to prevent this one-year federal trigger. However, before such changes or when a judge imposes a 365-day sentence, the effects are disastrous.
The sentence imposed encompasses suspended sentences. When a judge sentences you to 365 days in county jail, but the judge suspends the sentence and places you on probation, the federal law will consider that as a one-year sentence. You have not been to jail a single day, but you have been found guilty of an aggravated felony.
Such a one-day distinction is the dividing line between a fighting chance in the immigration court and summary removal.
Forensic Evidence and Medical Documentation
Under PC 273.5, defense lawyers should cooperate with forensic specialists, such as dentists and doctors, to examine evidence supporting a claim of a traumatic condition. The prosecution must demonstrate that there was a traumatic condition, that is, a wound or other physical injury, minor or severe, resulting directly from the use of physical force. The most crucial evidence in most domestic violence cases is a photograph of a bruise, a minor cut, or a complaint of pain. In forensic terms, the study of such injuries is usually subjective and open to interpretation.
A competent forensic examination may demonstrate that the injuries recorded do not correspond to the victim's version of the incident or are in line with defensive wounds or unintentional contacts. For example, injuries to the mouth or jaw can be examined by dental experts to identify the direction and magnitude of the force, which can, in turn, negate the allegations of a targeted strike.
Assuming that your lawyer can provide forensic evidence that the supposedly inflicted trauma condition is questionable or can demonstrate that the injury is not of the severity of a trauma, as defined in the statute, your lawyer can compel the prosecution to dismiss the charge to simple battery or a non-domestic violence offense.
By challenging the medical testimony, your defense attorney can actually neutralize the viciousness of the charge and thus protect you against the addition that renders the crime deportable. Such a high-tech, evidence-based defense is needed when the distinction between a felony and a misdemeanor is what will keep you in the country.
Negotiation of Non-Deportable Plea Bargains
The final objective of the defense of a non-citizen in a domestic violence case is to ensure a resolution that will demonstrate the likelihood of domestic violence to immigration officials. This is done by negotiating plea bargains on charges that are deemed neutral to immigration.
A Trespassing Plea (Penal Code 602)
A plea to PC 602 (trespassing) is one such strategy. Trespassing is not a crime of violence or a CIMT, as it does not entail injury to an individual or an intent to commit fraud. By convincing the prosecutor to revise the complaint to include an allegation of trespassing, maybe by making the case that the conflict was one of staying in a home without authorization, your lawyer could establish a record of conviction, which, in most cases, will not result in deportation.
A Disturbing the Peace Plea (Penal Code 415)
A second alternative is a typical one, PC 415 (Disturbing the Peace). Although PC 415 could be troublesome if the factual background leads to fighting, a well-crafted plea to “disturb the peace by loud and unreasonable noise" eliminates the violence element. Your lawyer should ensure that the record only shows non-violent behavior.
They can also explore a plea to simple battery under PC 242 in certain situations, provided the record does not mention a domestic relationship. You can avoid having the domestic aspect of the battery charge invoke the particular domestic violence ground of deportability by depriving the battery charge of its domestic aspect.
Those strategies involve a close understanding of the manner in which the DHS examines the convictions of states, which explains why a generic criminal defendant is not sufficient in the case of non-citizens.
Talk to a Criminal Defense Lawyer Near Me
In the California legal environment of non-citizens convicted of domestic violence, one wrong move, like the acceptance of a so-called standard plea bargain, can lead to the loss of the right to live in the country forever. Be it with a green card or undocumented, federal law offers no leniency for state-level misdemeanors, as long as they qualify as CIMT or aggravated felonies.
At Los Angeles Criminal Lawyer, we focus on the so-called "crimmigration defense," where we aim each step in court at defending your position in the U.S. Citizenship and Immigration Services (USCIS). We use forensic evidence and years of trial experience to negotiate non-deportable offenses such as simple battery or trespassing. Call us now at 310-502-1314 and have a high-stakes, confidential initial consultation.
