Many immigrants carry the fear that if they are arrested for any charges, they will be deported. This holds for domestic violence cases, which intersect both criminal and immigration law and can have impacts in both venues.
Due to the large immigrant population in California and the laws requiring that a peace officer make an arrest during any domestic violence call, having an attorney experienced in navigating immigration impacts of charges, such as those at the Law Offices of M. Gabriela Guraiib, is essential.
The Law Offices of M. Gabriela Guraiib can formulate a legal strategy to help defend you and your immigration interests, as the outcome and how severe the immigration consequences of a domestic violence charge depend heavily on the charge, the conviction, and how well your defense attorney develops their strategy.
How U.S. Immigration Law Defines “Domestic Violence”
Federal and California state laws have their own definitions of domestic violence, distinct from each other but with overlap.
Federally, domestic violence is defined as “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, psychological, or technological actions or threats of actions or other patterns of coercive behavior that influence another person within an intimate partner relationship. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”
California Penal Code § 13700 defines it as “[Abuse] means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. “Domestic violence” means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.
The key differences are that federally, there must be a pattern of abusive behavior meant to control the victim. At the same time, California considers first-time or single instance events of harm to be domestic violence.
Under the federal Immigration and Nationality Act (INA) Section 237(a)(2)(E), an alien convicted of a crime of domestic violence or abuse is eligible for deportation. However, not every domestic violence conviction in California will automatically trigger federal immigration consequences, as the charge must meet the federal requirements for a conviction, not just the state requirements, for federal consequences to be enacted.
Another aspect to note: charges are not convictions, and the deportation and immigration consequences stem from a conviction of the crime, not the arrest and charge.
Which Charges Carry the Most Risk?
Misdemeanor Domestic Battery (Penal Code 243(e)(1))
Misdemeanor domestic battery is the use of force or violence against a current or former intimate partner, a cohabitant in your residence, or the other parent of your child. Actual physical harm does not have to happen, i.e., someone is shoved during an argument or a plate is thrown against a wall, just the use of force or threat of violence. If this charge is part of a pattern that can be proven, it can be a crime of domestic violence under federal law and create a risk of deportation should you be convicted.
Corporal Injury to a Spouse or Cohabitant (Penal Code 273.5)
Much more severe is a corporal injury under Penal Code 273.5. To be classified under this code, the charge must include traumatic injury to the victim, meaning “a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, “strangulation” and “suffocation” include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.”
As a felony level charge, this has more severe immigration exposure and could be classified under federal law as an aggravated felony classification depending on the sentence imposed. The Law Offices of M. Gabriela Guraiib will draft a legal strategy to help combat these charges and mitigate any immigration risks.
Criminal Threats (Penal Code 422)
Threats of violence or harm, made verbally, electronically, or in writing, that are unambiguous and would make the recipient be in reasonable fear for their safety, carry criminal penalties, and if they are made against an intimate partner or family, can be charged as a domestic violence-related offence under California Penal Code 422. Depending on the contents of the threat and any additional charges or actions, criminal threats can receive a designation as a crime of violence federally, which can have immigration repercussions.
Child Abuse or Endangerment (Penal Code 273a)
Child abuse and endangerment, while punishable under California Penal Code 273a, is called out specifically under INA 237(a)(2)(E)(i) as a deportable offence. The abuse does not have to be overt; neglect and abandonment are federally considered deportable crimes. When facing these potential charges, the Law Offices of M. Gabriela Guraiib will review the details of the case and work to get charges reduced or dismissed.
Violation of a Protective Order (Penal Code 273.6)
Under California Penal Code 273.6, the violation of a protective order is a misdemeanor, but even a misdemeanor conviction can have serious immigration consequences.
INA has separate deportability grounds for protective order violations under 8 USC §1227 237(a)(2)(E)(ii). Per this code, “Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable,” regardless of whether the state charge is a misdemeanor or felony. Speaking with an attorney will help navigate these charges to hopefully avoid immigration consequences.
Green Card Holders: What’s at Stake
Lawful permanent residents, i.e., green card holders, are not immune to immigration consequences – the laws around deportability apply to them as well. Crimes of “moral turpitude,” or those crimes involving fraud, dishonesty, or violence, are subject to the revocation of a green card and subsequent deportation.
Crimes can render an individual inadmissible – unable to enter the country or change their immigration status, or can make them subject to deportation and barred from reentry.
Under federal law, convictions for domestic violence, threats, stalking, child abuse, or child endangerment can make a lawful permanent resident deportable and can even bar them from reentry. Aggravated felony convictions mean almost certain deportation under federal law and bar an individual from most forms of relief, such as vacating a conviction or reducing a felony to a misdemeanor.
During naturalization applications or reentry into the country after travel, when an individual faces enhanced scrutiny by immigration officials, old convictions can resurface and create legal struggles and stress. If you have any old convictions and are working towards naturalization or planning on traveling out of the country, consulting an attorney at the Law Offices of M. Gabriela Guraiib can prevent future headaches.
Undocumented Immigrants Are More Vulnerable
Any arrest, including domestic violence arrests, can flag an individual for ICE attention, as jail bookings are entered into shared databases that can alert immigration enforcement.
While the fear of deportation can make a victim want to keep silent about a domestic violence crime, victims do have protections under the law.
When facing a charge and potential conviction for a domestic violence incident as an undocumented immigrant, seek legal counsel with the Law Offices of M. Gabriela Guraiib immediately, before speaking with anyone else, including law enforcement. Contacting an attorney will help protect your rights, and the experience of our offices in the intersection of immigration law and criminal defense can keep you safe.
Protections for Immigrant Victims of Domestic Violence
There are mechanisms built into immigration law to protect domestic violence victims, as well as to punish offenders.
Under the Violence Against Women Act (VAWA), immigrant victims of domestic violence can be eligible to become a lawful permanent resident through self-petitioning, without sponsorship or cooperation from their abuser.
Victims of certain crimes, such as domestic violence or trafficking (which in some circumstances is relevant in domestic violence contexts), have both U and T visas available, provided there is cooperation with law enforcement. These visas provide temporary protected immigration status and pathways towards obtaining a green card.
A criminal charge against your abuser will not eliminate your options towards legal citizenship and residency, and the Law Offices of M. Gabriela Guraiib will navigate your options with you.
Why Legal Strategy Matters: The Role of a Criminal Defense Attorney
Navigating criminal penalties for domestic violence is tricky – not all convictions are equal, the charge specifics, plea, and sentencing all factor into whether you are at risk for deportation or not. Having an attorney in your corner, such as those at the Law Offices of M. Gabriela Guraiib, who are experienced in both criminal and immigration law and the intersectionality of both, is crucial for maintaining your safety.
Our attorneys can help negotiate charges that fall outside the federal definitions for domestic violence crimes. They can assist you in avoiding sentences above the thresholds that trigger aggravated felony classifications that almost always result in deportation, and can help explore diversion programs that may avoid immigration consequences.
Some cases are eligible for post-conviction relief to modify or vacate convictions that can potentially eliminate immigration impacts.
As every case is different, an attorney experienced in criminal and immigration law can make the difference between deportation and safety for you.
Talk to the Professionals
Whatever domestic violence charges you may be facing, the Law Offices of M. Gabriela Guraiib is equipped to navigate your situation and get you the best result possible. Contact our attorneys today for your case consultation and next steps for your situation.
