REMOVAL (DEPORTATION) FOR DOMESTIC VIOLENCE 

By Roman P. Mosqueda, Esq.

            Conviction at any time after entry into the United States for domestic violence, stalking, crimes against children (child abuse, neglect or abandonment), or violation of protection order is a ground for removal (formerly termed deportation), under Section 237(a)(2)(E) of the Immigration and Nationality Act (INA).

            This statute defines “crime of domestic violence” as “any crime of violence against a person committed by:

(a)  a current or former spouse of person,

(b)  an individual with whom the person shares a child in common,

(c)  an individual who is cohabiting with or has cohabited with the person as a spouse,

(d)  an individual similarly situated to spouse of the person under the domestic or family violence laws where the offense occurs, or

(e)  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 Definition: 

            Aforesaid statute further refers to Section 16 of Title 18 of the United States Code for the definition of “crime of violence” to mean:

            “(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.”

            Thus, the crime of assault and battery becomes a domestic violence crime, if there is no consent of the victim, who is a protected person as a household member.

            A “crime of violence” for which the term of imprisonment is at least one year is classified as an “aggravated felony” by section 101(a)(43)(F) of the INA.  If less than one year imprisonment is imposed, it is not an “aggravated felony”, but still a ground for removal (deportation).

            An alien, whether legal, illegal or overstaying, or even though a lawful permanent resident (LPR), is removable, if convicted of an “aggravated felony”, for which there is no defense, except withholding of removal or relief under the U.N. Convention Against Torture (CAT). 

            A crime of domestic violence becomes an “aggravated felony”, if the term of imprisonment is at least one year.

            And for a crime of domestic violence to constitute a ground for removal, the conviction or violence should occur after September 30, 1996, per section 350(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 

California Criminal Law On Domestic Violence: 

            A. Definition of Domestic Violence:

            Section 13700(b) of the California Penal Code defines “domestic violence” as “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.”

            And this statute defines “cohabitant” as “two unrelated adult persons living together for a substantial period of time, resulting in some permanency relationship”.

            Some of the factors that may determine cohabitation are:

            (1)  sexual relations between parties sharing the same living quarters,

            (2)  sharing of income or expenses,

            (3)  joint use or ownership of property,

            (4)  the parties holding themselves as husband and wife,

            (5)  continuity of the relationship, and

            (6)  length of the relationship.

            And Section 13700(a) of the same Penal Code defines “abuse” as “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.” 

            B.  Penalty for Domestic Violence

            Section 273.5(a) of the California Penal Code penalizes “any person who willfully inflicts upon a person who is his or his spouse, former spouse, cohabitant, former cohabitant, or  mother or father of his or her child, corporal injury resulting in a traumatic condition” with “a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($ 6,000) or by both that fine and imprisonment.”

            Thus, while the crime of domestic violence is categorized as a felony under the California Penal Code Section 273.5, it may have the penalty of a misdemeanor (imprisonment for not more than one year in county jail), depending on the circumstances of each case.

            A first-time offender may plead guilty or be convicted of domestic violence and be sentenced to imprisonment for less than one year by the criminal court judge. 

            But the same statute (Section 273.5 of the Penal Code) provides for enhanced sentence to a person convicted of domestic violence within seven years of a previous conviction.

            The moral of this article is: as a bumper sticker wisely states:   “There is no excuse for domestic violence.”