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How a Simple Misdemeanor Conviction Can Cause the Loss of Your Green Card.

When dealing with Family and Criminal Law cases where you are in residence status, it becomes extremely important to understand the differences in the state and federal criminal laws. Here is an example in a domestic violence situation which can occur in both the Family and Criminal Law arena.

In a recent domestic violence case I handled, a citizen of the U.K. moved to California to be near family and obtained residency "green card" status. He married an American citizen but after a volatile year filed for divorce. Trying for a reconciliation the couple went out drinking, got drunk, got into an argument, she bit his finger, he pinched her nose, it bled slightly in a napkin, she called police and he got arrested. The District Attorney wanted to file a felony domestic violence due to a tiny spot of blood on the napkin.

California Penal Code section 273.5 (a) reads "Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony".

This code section is also called a "wobbler" which means it can be filed or reduced to a misdemeanor.

Before the prosecutor filed the case, I was able to meet and convince her to file the charge as a misdemeanor. This was promising, however a P.C. 273.5(a), a misdemeanor in the Superior Court of California, is an "aggravated felony" and a "crime involving moral turpitude" in Federal Court. Both categories are deportable .

For a crime that is categorized as a "aggravated felony", to avoid deportation one has to be sentenced to less then a year in jail. However a crime involving "moral turpitude" is deportable regardless of the sentence served. The charge of P.C. 273.5(a) even as a misdemeanor, is both a aggravated felony and a crime of moral turpitude under Federal Immigration laws.

So what can you do in a situation like this? In the above case I was able to further negotiate the case at the settlement conference to a non deportable offense which was Penal Code section 243(e) spousal battery. However, in any charge that is reduced, one still has to make sure the transcript and plea form is clear of any language that refers back to the initial crime charged. Depending on the Federal Judge, the information from the State plea can be ordered to be reviewed by the that Federal Court in the deportation hearing.

This was just one of several charges that are deportable. It becomes so tricky one must make sure they have a Family Law or Criminal Law Attorney who is familiar with the deportation consequences before you take a plea in criminal court or make admissions in a family law case.

Additional resources provided by the author

It is best to contact a criminal defense attorney that is also familiar with what effect a plea on a criminal charge will have on ones immigration status.

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