The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) made a conviction for domestic violence, a domestic violence related offense, or a violation of a no contact order, at any time after admission, a ground for the deportation of certain non-citizens from the United States. INA §237(a)(2)(E); 8 U.S.C. §1227(a)(2)(E).

Deportable offenses under INA §237(a)(2)(E) include: crimes of domestic violence; stalking; violations of protection orders; child abuse; child neglect; and child abandonment. INA §237(a) (2)(E); 8 U.S.C. §1227(a)(2)(E).

A “crime of domestic violence” means any crime of violence (as defined in 18 U.S.C. §16) committed against: a current or former spouse; 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 of the person under the domestic or family violence laws of the jurisdiction where the offense occurs; or by 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 or any State, Indian tribal government, or unit of local government. INA §237(a)(2) (E)(i); 8 U.S.C. §1227(a)(2)(E)(i).

Section 237(a)(2)(E)(ii) addresses violations of protection orders. It states that any non-citizen who at any time after admission 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 protective order was issued” is deportable. It defines protective order as “any 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” INA §237(a)(2)(E)(ii); 8 U.S.C. §1227(a) (2)(E)(ii).

Section 237(a)(2)(E) of the Immigration & Nationality Act is not retroactive and is therefore only applicable to convictions and findings after September 30, 1996. IIRIRA §350(b).

It is important to note that INA §237(a)(2)(E) is an independent ground for deportation, specifically related to domestic violence offenses, and is distinct from the ground for deportation for criminal offenses found at INA §237(a)(2)(A) [8 U.S.C. §1227(a)(2)(A)] or for firearm offenses found at INA §237(a)(2)(C) [8 U.S.C. §1227(a)(2)(C)] . Therefore, though a conviction for domestic violence or a domestic violence related offense may also subject a non-citizen to deportation under INA §237(a)(2)(A) or INA §237(a)(2)(C), a non-citizen may be subject to deportation solely under INA §237(a)(2)(A) regardless of the amount of time he or she is actually sentenced to, and regardless of whether the conviction is for a felony or a misdemeanor.

Another important note is the distinction between non-citizens who have been “admitted” (lawful entry after inspection and authorization by an immigration officer) to the United States, and those who have not. Only non-citizens who have been “admitted” to the United States, are deportable under INA §237(a)(2)(E). However, although §237(a)(2)(E) cannot be used to remove a non-citizen who entered the United States illegally and who remains in the United States in unlawful status, convictions for domestic violence or domestic violence related offenses may be deemed grounds of inadmissibility and therefore grounds for removal of such non-citizens who have not been “admitted” to the United States, but who are nevertheless within her borders.

With two exceptions, found in INA §212(a)(2)(A), a non-citizen who it is determined has not been “admitted” to the United States but who has been “convicted of, or who admits having committed or who admits committing acts which constitute the essential elements of a crime involving moral turpitude” is deemed inadmissible. INA §212(a) (2)(A)(I). Though the Immigration and Nationality Act does not contain a precise definition of “crimes involving moral turpitude,” crimes of domestic violence and certain domestic violence related offenses may be considered “crimes involving moral turpitude” and subject non-citizens to removal.

Additionally, a non-citizen who has been convicted of two or more offenses, regardless of whether the offenses involved moral turpitude, is inadmissible if the aggregate sentences were more than five years. INA §212(a)(2)(B). Therefore, under these provisions, a non-citizen, who has not been “admitted,” may be deemed inadmissible and removable from the United States for such convictions or admissions to such offenses.

For the above reasons, it is important for defense counsel to ascertain exactly what type of immigration status a non-citizen facing a domestic violence or domestic violence related charges is in. It is also important to determine whether or not he or she has been convicted of any other crimes (as conviction is defined by INA §101(a)(48)(A)), or has admitted to committing any other offenses before going forward with trial or a plea agreement.

Armed with such knowledge, there are several ways in which defense counsel can work with the court and prosecutors to minimize the negative immigration consequences of domestic violence related conduct. For example, a carefully drafted “immigration-safe” deferred adjudication agreement, a plea to an alternative offense that does not subject the non-citizen to deportation or removal, or the imposition of a sentence of less than 365 days for certain crimes may allow a non-citizen to escape deportation or removal from the United States.