Non-Citizens Charged With Domestic Violence: When a Conviction Makes You Deportable

Quick answer: Under 8 U.S.C. 1227(a)(2)(E)(i), a non-citizen who is convicted of a crime of domestic violence at any time after admission is deportable. A misdemeanor can count. Immigration law also has its own definition of conviction, so a guilty plea with some form of punishment can qualify even when a court withholds a finding of guilt. If you’re a permanent resident or visa holder charged in McKinney or Collin County, talk to your defense lawyer and an immigration lawyer before you enter any plea.

The firm’s former clients include permanent residents and visa holders, and we account for immigration status when deciding how to approach a defense. This guide is general information about the statute. It isn’t immigration advice for your case.

What does the statute say?

8 U.S.C. 1227(a)(2)(E)(i) says 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.

Three details are worth reading closely. “At any time after admission” means there’s no grace period based on how long you’ve been here. “Any alien” isn’t limited to people on temporary visas, so it includes lawful permanent residents. And nothing in that clause says the offense has to be a felony or come with a minimum sentence.

What is a crime of domestic violence for immigration purposes?

The statute has its own definition. It means a crime of violence, as defined in 18 U.S.C. 16, against a person, committed by:

• A current or former spouse of the person
• An individual with whom the person shares a child in common
• An individual who is cohabiting with or has cohabited with the person as a spouse
• An individual similarly situated to a spouse under the domestic or family violence laws of the place where the offense occurs
• Any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States, a state, a tribal government or a local government

Section 16(a) covers an offense that has as an element the use, attempted use or threatened use of physical force against the person or property of another. Whether a specific Texas offense fits is a legal question that turns on what the offense requires. That’s why the exact section you plead to can matter as much as the facts. Don’t rely on the Texas family violence label to answer it, in either direction.

What counts as a conviction?

This is where people get hurt. 8 U.S.C. 1101(a)(48)(A) says conviction means a formal judgment of guilt entered by a court. It also says that if adjudication of guilt has been withheld, there’s a conviction where a judge or jury has found the person guilty, or the person has entered a plea of guilty or no contest or admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment, penalty or restraint on the person’s liberty.

Read that next to how Texas deferred adjudication is usually described to people. A resolution that’s explained as “no conviction” under state law can still be a conviction for immigration purposes. Subparagraph (B) adds that a reference to a term of imprisonment includes a period ordered by the court even if it was suspended.

Term	What the federal statute says	Why it matters
Deportable	8 U.S.C. 1227(a): a non-citizen in and admitted to the United States shall, on order, be removed if within a listed class	A charge isn’t the trigger in (E)(i). A conviction is
After admission	1227(a)(2)(E)(i): at any time after admission	It doesn’t depend on how long ago you arrived
Crime of domestic violence	1227(a)(2)(E)(i), using 18 U.S.C. 16	A federal test, separate from the Texas label
Conviction	1101(a)(48)(A): includes a plea plus some punishment, even if adjudication is withheld	Deferred adjudication may not avoid it
Protection order violation	1227(a)(2)(E)(ii): a court determines you engaged in conduct violating the protective part	Doesn’t use the word conviction, and can reach civil orders

What about protective orders?

A second clause matters in these cases. Under 8 U.S.C. 1227(a)(2)(E)(ii), any non-citizen who at any time after admission is enjoined under a protection order issued by a court, and whom the court determines has engaged in conduct that violates the part of the order involving protection against credible threats of violence, repeated harassment or bodily injury, is deportable.

Protection order here means any injunction issued to prevent 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. So following an emergency protective order to the letter is especially important for a non-citizen. A casual violation of a temporary order can create a problem of its own.

Is there a waiver?

There’s a narrow one. 8 U.S.C. 1227(a)(7) allows a waiver of these grounds, for crimes of domestic violence and stalking and protection order violations, for someone who has been battered or subjected to extreme cruelty and who isn’t and wasn’t the primary perpetrator of violence in the relationship, on the determinations the statute lists. It’s discretionary and it’s an immigration question, not something to count on when deciding about a plea.

What should you do before a plea?

Don’t enter a plea in a family violence case until the immigration effect has been looked at. Tell your defense lawyer your exact status on the first call. Bring any immigration paperwork you have. If you have or need an immigration lawyer, get the two lawyers talking early.

Also don’t plan around the idea that a misdemeanor is safe, or that deferred adjudication is safe. The same plea can also carry firearm consequences and an affirmative finding of family violence.

Chiles McGuire Criminal Law handles family violence and domestic violence defense in McKinney and throughout Collin County. We take on a limited number of serious cases, and immigration status is part of how we think about the defense from the start. Call for a free, confidential consultation at 214-628-7292.