Immigration Consequences of a Domestic Violence Case in New York

The Domestic Violence Deportation Ground

Under 8 U.S.C. § 1227(a)(2)(E)(i), a non-citizen is deportable if, at any time after admission, the person is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment. There is no minimum sentence. A conditional discharge counts the same as a jail term.

A "crime of domestic violence" is a "crime of violence," as defined in 18 U.S.C. § 16, committed against a person in a protected relationship such as a current or former spouse, a co-parent, or a person living with the accused as a spouse. In Sessions v. Dimaya (2018), the Supreme Court struck down the broader half of that definition, § 16(b), as unconstitutionally vague. What remains is § 16(a): an offense that has as an element the use, attempted use, or threatened use of physical force.

Immigration courts decide whether a state offense meets that definition under the categorical approach. They look at the elements of the statute of conviction, not at what actually happened. Whether particular New York misdemeanors qualify, including assault in the third degree, is contested and depends on the subdivision. An intentional-injury subdivision is analyzed differently from a reckless or negligent one. For that reason the exact subdivision named in the plea, and what the record of conviction says, can matter more than the name of the charge.

Violating an Order of Protection

The second ground, 8 U.S.C. § 1227(a)(2)(E)(ii), is the one that surprises people. A non-citizen is deportable if a court determines that the person violated the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury. The statute asks for a court determination. It does not require a criminal conviction.

That means a plea to criminal contempt for a single prohibited phone call can be a deportable event, even when the underlying domestic case is later dismissed. A violation finding made in Family Court, which is a civil proceeding, can be enough as well. For a non-citizen, strict compliance with the order of protection is an immigration matter, and any contempt charge has to be defended with this ground in mind.

Crimes Involving Moral Turpitude

Many domestic violence offenses can also be charged by immigration authorities as crimes involving moral turpitude. A non-citizen is deportable for a single such crime committed within five years of admission if it is one for which a sentence of one year or longer may be imposed, and for two such crimes at any time after admission if they did not arise from a single scheme. In 2019 New York reduced the maximum sentence for a class A misdemeanor from one year to 364 days. As a result, a single New York misdemeanor no longer meets the "one year or longer" test.

Inadmissibility is a separate question. Under 8 U.S.C. § 1182(a)(2), a conviction for, or a formal admission of, a crime involving moral turpitude can bar a person from a green card, from a visa, or from re-entering the country after travel. A petty offense exception covers a single offense with a maximum possible sentence of one year or less where the sentence actually imposed was six months or less. It is available once.

Aggravated Felonies and Child-Related Pleas

A crime of violence for which the term of imprisonment is at least one year is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). An aggravated felony conviction leads to deportability with a near-total bar to relief, including cancellation of removal and asylum, and a permanent bar to return. Felony pleas in domestic cases, such as strangulation in the second degree or assault in the second degree, carry this risk whenever the sentence reaches one year.

Prosecutors sometimes add, or offer, endangering the welfare of a child under PL § 260.10 when children were present during the incident. It can look like the lesser charge. For a non-citizen it risks the "child abuse, child neglect, or child abandonment" ground, which immigration authorities read broadly, and it should not be accepted without immigration advice.

Safer Dispositions

No disposition is safe in every case. The table below states the main risk of each in general terms. It is not a substitute for advice on your own status and history.

Two details of the plea itself need attention. The first is the allocution. What the defendant admits on the record becomes part of the record of conviction, and unnecessary admissions about force, injury, or the relationship can be used later. The second is the final order of protection attached to the plea. Its duration and terms determine how long the client lives under the protection-order ground. We negotiate both as part of the plea, not as afterthoughts.

Beyond Deportation

• Naturalization. An applicant must show good moral character. An open case will stall an application, and a recent conviction or a probationary sentence can lead to denial even where the offense is not a deportable one.
• DACA and other discretionary benefits. Domestic violence misdemeanors are treated as significant, and an arrest alone can draw scrutiny at renewal.
• Adjustment of status and discretionary relief. Officers and immigration judges weigh the underlying facts, including police reports, even after a favorable disposition.
• Travel. A lawful permanent resident returning from abroad with a qualifying conviction can be treated as an applicant for admission and placed in removal proceedings at the airport. Do not travel while a case is open, or after a plea, without advice.
• Courthouse arrests. New York's Protect Our Courts Act (2020) limits civil immigration arrests of people going to, attending, or leaving court unless the officers have a warrant signed by a judge. Missing a court date is never the answer. It produces a bench warrant and makes everything worse.

What We Do in These Cases

We ask about status, date and manner of admission, prior arrests, and pending applications at the first meeting, and that information stays privileged. Where the consequences are not clear, we consult immigration counsel before any plea is entered, not after. We then set the goal of the criminal defense around the immigration outcome: a dismissal or adjournment in contemplation of dismissal where the proof allows it, a violation where it does not, and a trial where the only offers on the table would end the client's life in this country.

Get Advice Before You Plead

If you are not a United States citizen and you have been arrested for a domestic violence offense in New York, call us at 212-233-1233 or email [email protected] before your next court date.