Domestic Violence Crimes in New Jersey and Immigration Consequences

One often-overlooked ground of deportability is conviction of a crime of Domestic Violence. The ground is located at INA 237(a)(2)(E) which covers “crimes of domestic violence, stalking, or violations of protection orders, and crimes against children.” Subsection i further provides: “any alien who at any time after admission is convicted of a crime of domestic violence is deportable. For purposes of this clause, the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabitating with or has cohabitated with the person as a spouse, by 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 by any other individual against a person who is protected from that individual’s acts by under the domestic or family violence laws of the United States or any State….” There is an amorphous, wide penumbra of acts within the State of New Jersey that the Department of Homeland Security could potentially classify as a crime of domestic of violence within the aforementioned mentioned context including Homicide, Assault, Aggravated Assault, Sexual Assault, Terroristic Threats, and Criminal Restraint. Whether the ICE prosecutor could prevail on such a charge is, of course, fact-, case-, and statute-sensitive. A number of defenses could be asserted including whether 1) was there a “conviction”? 2) was the crime really one of violence, and 3) whether the required domestic relationship has been established. Moreover, there are a number of interesting circuit and Board of Immigration Appeals (BIA) cases that further define and shape the court’s interpretation of domestic violence crimes. Nevertheless, any foreign born criminal defendant charged with such an offense needs to investigate with both criminal and immigration counsel whether pleading guilty to such a crime may implicate a charge of deportability. Often times, defendants and counsel are so fixated on crimes involving moral turpitude and aggravated felonies, that this separate basis of deportability is neglected, potentially to one’s detriment.