Restraining Orders are orders of protection granted by the Court to prohibit an individual from contact with the person claiming that his/her life, health, or well being is being threatened. They are intended to safeguard victims of domestic violence. While a restraining order is civil in nature, there are a number of consequences that can extend into both the criminal and immigration arenas.
Violations of restraining orders may be considered criminal in nature and prosecuted as Contempt. The relevant statute, NJ 2C:29-9, states in part:
“A person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the “Prevention of Domestic Violence Act of 1991″ or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases, a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of a substantially similar statute under the laws of another State or the United States.”
Importantly, in New Jersey, conviction of a fourth degree crime exposes the defendant to a potential penalty of incarceration of up to eighteen months.
Generally speaking, a restraining order, in and of itself, will not trigger adverse immigration consequences in terms of deportability. Deportability, however, should be distinguished from other immigration related contexts, such as the establishment of good moral character, which is relevant during an a naturalization application or any situation in which discretion (prosecutorial or otherwise) may be exercised. It is in violating the restraining order that potential deportability may be triggered. Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (INA) reads as follows:
Any alien who at any time after entry is enjoined under a protection order issued by a court an 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. For purposes of this clause, the term “protection order” means injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendete lite order in another proceeding.
Three things to note:
This is a separate ground of deportability. The act itself may also potentially constitute a domestic violence crime and/or a crime involving moral turpitude or aggravated felony, which are independent and different grounds of deportability. One should consult with an experienced immigration attorney to evaluate whether the act could conceivably fall under one or more of these grounds of removal.
A conviction is required. Admissions of having violated a restraining order do not necessarily constitute convictions if there is no plea or finding of guilty before or by a court. Also, this ground applies to convictions that take place after September 30, 1996. Any convictions for violations of restraining orders that take place before this date may not incur this ground of deportability.
Certainly if a non-citizen is charged with violating a restraining order, it would benefit him/her to enlist the counsel of not only a skilled criminal defense and family law attorney but also an immigration attorney who can accurately assess the immigration consequences.
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