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Will New Jersey 2C:12-1 Assault Be Considered a Deportable Crime of Violence?

The Board of Immigration Appeals ("BIA") recent issued a precedential decision last month that may cause havoc for immigration court cases concerning domestic violence. The ruling in Matter of H. Estrada, 26 I & N Dec. 749 (BIA 2016), essentially revolves around what constitutes a crime of domestic violence. Under the Immigration and Nationality Act, a non-US citizen is deportable for a conviction of a crime of domestic violence if the crime is a "crime of violence" as defined at 18 USC 16 and is committed against a victim with a protected domestic relationship. Under 237(a)(2)(E)(i), this has been taken to cover offenders who are current or former spouses of the victim; individuals who the victim shares a child in common; individuals who cohabitate or have cohabitated with the victim as spouses; or by those similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction where the crime occurred.

Unfortunately, due to the vagueness of the statutory language, it is not always apparent whether a crime is or is not a crime of domestic violence, according to the deportability ground codified in the INA. To make matters worse, the BIA notes that there is no uniformity of opinion among the various circuit courts as to which approach is appropriate to make a determination. As a result, the BIA held that a "circumstance-specific inquiry" as opposed to a stricter "categorical approach" analysis must be applied. What this essentially means is that the Court may consider any and all reliable evidence that form the record of conviction to determine whether the underlying crime that is the basis of the charge of deportability, presents a crime of domestic violence. This potentially include documents such as police reports, court records as well as testimony to demonstrate the required domestic relationship. In contrast, under the categorical approach, the Court would have looked strictly and solely at the statute of conviction to determine if it mirrored or matched the corresponding ground of deportability.

Practically speaking, this may result in needless "mini-trials" in which the domestic relationship will have to be proven before the Immigration Court, which is notoriously backlogged and strained. Instead of litigating issues of merit, defendants and their attorneys may find themselves in protracted hearings over whether the defendant was the spouse or boyfriend/girlfriend of the victim of a criminal proceeding that has already disposed of and which may be many years old. Witnesses and evidence that may be helpful to the defendant may no longer be available. What's worse, in New Jersey particularly, there is no one crime of "domestic violence." Rather, the Prevention of Domestic Violence Act of 1990, creates an umbrella of criminal offenses that may potentially cover a swath of offenses provided that a relationship is established. The crimes include:

  • Homicide
  • Assault
  • Terroristic threats
  • Kidnapping
  • Criminal restraint
  • False imprisonment
  • Sexual assault
  • Criminal sexual contact
  • Lewdness
  • Criminal mischief
  • Burglary
  • Criminal trespass
  • Harassment
  • Stalking

This decision may open the doors a little wider for the government to use these grounds to attack defendants for crimes which in and of themselves might not normally be deportable offenses. For example, some would argue that a simple assault in New Jersey is not generally considered a Crime Involving Moral Turpitude. However, the government might be emboldened by this decision and now try to classify that same conviction not as a CIMT but more as a Crime of Domestic Violence if it was committed against a person whom the defendant may have had a relationship with. To make its case, the government may try to introduce court records and other documents where the offense is denoted as one of "domestic violence."

We have yet to see what the ramifications of this decision are, but given the current immigration climate and renewed aggressiveness against criminal aliens, it does not bode well. If anything, it should prompt non-US citizens charged with any type of criminal offense, no matter how seemingly minor or inconsequential, to get a formal opinion from an immigration attorney.  

The above is general advice/opinion only and not intended to substitute for legal advice.  Furthermore, it does not create an attorney client relationship.  

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    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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Lee & Garasia, LLC
190 State Route 27
Edison, NJ 08820

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