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NJ Criminal Immigration Attorney: Is there a deportation waiver for domestic violence?

On Behalf of | Mar 3, 2014 | Criminal Law & Municipal Court, Deportation |

One of the more common grounds of removal known to immigration practitioners, but no so much to the general public, is a conviction for a crime of domestic violence. Many permanent residents and aliens-and sometimes their attorneys– are sometimes so focused on the dangers of aggravated felonies and crimes involving moral turpitude, that they neglect to ascertain whether they are exposed to a charge of deportability based on this ground. INA 237(a)(2)(E) states: “Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.” Interestingly, there is no parallel inadmissibility provision for domestic violence. But what about situations where battered spouses are convicted of domestic violence crimes even though they may have been acting in response to an alleged attack by their abuser? Fortunately, the Immigration and Nationality Act recognizes limited circumstances like these and provides for a waiver to possibly waive the deportability teeth of a domestic violence conviction. The waiver can be found in INA 237(a)(7) and applies to victims of domestic violence victims. It states that the Attorney General may waive the deportability provisions of a domestic violence crime for a person “who has been battered or subjected to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship upon a determination that-

· the alien was acting in self defense;

· the alien was found to have violated a protection order intended to protect the alien; or

· the alien committed, was arrested for, was convicted of, or pled guilty to committing a crime

o that did not result in serious bodily injury; and

o where there was a connection between the crime and the alien’s having been battered or subjected to extreme cruelty.

So, in limited factual scenarios, a skilled immigration advocate may be able to help his/her client persuade Immigration and Customs Enforcement, the Office of Chief Counsel, or even an Immigration Judge that an alien is not deportable notwithstanding a domestic violence conviction. Obviously, this is a very fact sensitive waiver but fortunately, the statute allows any credible evidence to be considered. Given this, it is crucial, especially if the case is in its early stages, that an immigration attorney be involved and work alongside the criminal defense attorney. The immigration attorney will be able to advise the defense attorney of this waiver and what evidence will need to be preserved, as well as what may need to be put on the record in the event that a conviction is likely. Police reports, certified dispositions, pictures, and witness statements should always be retained for the immigration advocate to examine.

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