Written by attorney Jeffrey Alan Peek

Family Violence Assaults and Immigration: The Good, Bad, and the Ugly

Representing an immigrant when confronted with a charge of Assault Family Violence can be one of the more challenging issues a Criminal Defense/Immigration Practitioner faces. The reason being is a charge and potential conviction for Assault Family Violence challenges the Attorney to identify and understand the multi faceted risks and opportunities involved in the pending case, the complexity of which usually is only seen in a law school exam.

Assault Family Violence (as it is commonly called) is an Assault Bodily Injury under § 22.01 of the Texas Penal Code charge with the potential to have a Family Violence finding – meaning that the victim was related to the Defendant under one of the relationships laid out in §71 of the Texas Family Code. Assault Family Violence carries with it 3 potential problems if the immigrant is convicted of it, but also carries 2 potential opportunities if the immigrant is the victim.

The Good

Immigration has a couple of Safe Harbor provisions for immigrants, who would otherwise be deportable, in the event they are victims of violent crime. The 2 most commonly used immigration processes to protect these immigrant victims, are the U Visa [i] and VAWA ii. The U visa allows a victim of Assault Family violence to obtain a work permit, and eventually (after a 3-4 year wait) obtain Permanent Residency. The victim is required to have: (1) suffered substantial physical or mental abuse as a result of having been a victim of the criminal activity (Assault and other abuse); (2) possess information concerning the Assault; (3) be helpful to local law enforcement and/or prosecutors in investigating and prosecuting the crime; and (4) the crime was committed in and is in violation of laws of the United States. Perhaps even a bigger benefit, is that the victim’s spouse and children (under 21) can also receive the same immigration benefits. If the victim is under 21, her parents can also benefit and be eligible for the visa.

VAWA is a little different in that it require the victim to be married to the accused and it require that the accused be a Lawful Permanent Resident or a US Citizen (Abused immigrant children can also qualify under VAWA). [iii] USCIS has been a little more broad in their definition of being "battered" or "subject to extreme cruelty" in that it doesn’t require that there have been an arrest or criminal charge (resulting from the abuse) as is required under the U Visa. [iv] One big difference is that under VAWA you can "self petition", meaning you don’t have to require a signature by the petitioner, nor do you have to receive the signature from law enforcement or the Prosecution as you have to do with a U Visa (which many times results in long waits as law enforcement or the Prosecutors review the request). The VAWA process also leads directly to Permanent Residency, compared to the U Visa which requires the U Visa holder to maintain U Visa status for 3 years (work permit only) before applying for Permanent Residency. [v]

The Bad

Every Criminal Defense practitioner should be aware the Assault Family Violence is its own separate ground of Deportability. §237(a)(2)(E) of the INA states any alien who is convicted of domestic violence (including violating protective orders) is deportable. Interestingly enough, although it is a deportable offense under §237(a)(2)(E), it is not listed as a ground of inadmissibility under §212. What does that mean ? It provides the very odd result that a person who is already a Lawful Permanent Resident could lose their residency with an Assault Family Violence conviction and be deported, but at the same time if that person was married to a US Citizen, could have that US Citizen spouse file for them via Consular Processing and later be admitted back into the United States as a Permanent Resident. However, a recent ruling by the 5th Circuit in Holder v. Esparza-Rodriguez (5th Cir. 2012) has decided that an Assault Bodily Injury conviction in Texas, where the Assault is intentional and knowing and caused more than a "de minimis" level of physical harm, is a Crime of Moral Turpitude. Previously case law from the Board of Immigration Appeals (BIA) and the 5th Circuit had ruled that due to the way the Texas statute was written, it had left open an uncertainty which did not allow such a finding. The finding in Esparza-Rodriguez puts the accused immigrant in a position where a conviction would not only make him removable under §237(a)(2)(E), but also have a Crime of Moral Turpitude conviction and removable under §237(a)(2)(A)(i). This places additional burden on defense counsel to pursue even more inventive and creative plea deals in order to avoid a potential deportability. Also, the defense of Cancellation of Removal for Non-Permanent Residents under §240A(b) requires a period of 10 years of presence with "good moral character", so a conviction for both Assault Bodily Injury or Assault Family Violence will disqualify the immigrant from asserting this defense.

TIP: The 5th Circuit court indicated in its decision that the Assault in that case was committed with "the requisite level of scienter…." , which was "intentionally and knowingly". Texas Penal Code §22.01 also permits for an Assault to be committed "Recklessly". In the event you can’t convince the State to dismiss or reduce the Assault to a Class C "Offensive Contact" Assault (which the courts have held does not qualify as morally turpitudinous), look to plea the client to merely "reckless" assault, which would then take away the "intent to cause physical harm", a term used in the BIA’s decision in In re Solon, which the 5th Circuit quoted as its justification in Esparza-Rodriguez.In re Solon, 24 I.& N. Dec.239, 241-42 (BIA 2007);

The Ugly

Last but not least, the most damaging conviction for an Immigrant coming out of a plea bargain for Class A misdemeanor Assault under Texas Penal Code § 22.01 (regardless if it has the Family Violence Finding or not), is a sentence of 1 year or 365 days. Class A misdemeanors have a range of punishment up to 1 year in jail. Many times prosecutors when offering probation will offer a 1 year sentence, probating that sentence for 1 or 2 years (meaning the client is on probation for 1 or 2 years, and if he screws up on probation, the court can sentence him for up to 1 year in County Jail). The problem is that Assault by definition has been classified as a Crime of Violence under Federal Law in section 16 of title 18, United States Code. Under section § 101(a)(43)(F) of the INA holds that a crime of violence "for which the term of imprisonment is at least 1 year" is an Aggravated Felony. Aggravated Felonies not only ruin almost every type of immigration relief and future immigration options one has, but it also can expose an immigrant to future serious enhancements under the Federal Sentencing Guidelines, should that immigrant illegally reenter the country in the future. For this reason, the conscionable and educated criminal defense practitioner should do everything in his power to avoid entering a plea agreement in which his non-U.S Citizen client pleads to a 1 year probated sentence, or pleads to a 365 day jail sentence for any misdemeanor Assault charge. To do so would make his client an Aggravated Felon, and completely ruin his future immigration options.

[i] §101(a)(15)(U) of the Immigration & Nationality Act ("INA").

[ii] §101(a)(51) of the INA; §245(a) of the INA.

[iii] §204(a)(1)(A)(iv) of the INA.

[iv] §204(a)(1)(A)(iii)(I)(bb) of the INA.

[v] §245(m)

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