LEGAL GUIDE
Written by attorney Peter Hills Acker | Dec 20, 2011

Knowing and Avoiding the Immigration Consequences of a Battery Conviction

Even a simple battery conviction can have dire immigration consequences. This guide briefly explains the consequences certain battery convictions can have on one’s immigration status and explores alternatives in such cases. This guide is intended only as a general reference and is not intended as and should not be taken as personal legal advice.

I. A Short Note on the Concepts of Inadmissibility and Removability

Before we get into the consequences of a battery conviction, it is important to understand the difference between admissibility and removability. Inadmissibility means that one cannot be admitted to the United States nor can they adjust status. Removability means that that person can be removed by Immigration and Customs Enforcement (ICE) from the United States. However, if, after conviction, one is nonetheless admitted to the United States after having disclosed that conviction, the person cannot be removed based on that conviction.

II.The Consequences of a Battery Conviction on Admissibility

A battery conviction or plea can have an enormous impact on a foreigner’s admissibility depending on the circumstances of the battery, the statute of conviction, and the sentence imposed. Even simple battery can lead to an inadmissibility determination as a crime of moral turpitude.

Generally any person who commits, attempts to commit, or admits to committing a crime of moral turpitude is inadmissible (there are waivers for such a determination but that is a different matter). The term “crime of moral turpitude" is not defined in immigration statutes, but as a general rule, a crime involves moral turpitude if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.

The certain circumstances that determine whether a battery is a crime of moral turpitude depend on the relationship between the perpetrator and the victim, the intent requirement under the convicting statute, and the level of violence that the statute requires for a conviction.

Case law has indicated that a relationship between the perpetrator and the victim plays a role in determining whether an act is morally turpitudinous. Battery of certain protected persons such as domestic partners, children, and peace officers will raise the level of depravity, but is not necessarily conclusive. The degree of intent required under the statute of conviction will also determine whether an act involves moral turpitude. Generally, the convicting statute must require at least reckless behavior to invoke moral turpitude. Finally, the statute of must require a use of physical force beyond mere contact. The cases in which the Board of Immigration appeals have found force requisite to invoke moral turpitude include, but are not limited to: grievous bodily injury, battery with a deadly weapon, and battery creating lasting damage to the victim.

Practically speaking one should always seek counsel of a well qualified and knowledgeable immigration attorney to make sure that one charged with or convicted of a battery does not run into the realm of problems associated with a crime of moral turpitude determination.

III.The Consequences of a Battery Conviction on Removability

A battery conviction can also severely affect removability of foreigners in the United States.

First, generally, a foreigner is deportable if he or she is convicted of a crime of moral turpitude committed within 5 years of admission for which a sentence of one year or longer may be imposed. Thus if the battery conviction is a crime of moral turpitude, was committed within 5 years of admission to the United States, and the potential sentence for a conviction of that crime is 1 year or greater (regardless of the actual sentence imposed), then a foreigner who has committed a battery under these circumstances is removable.

A foreigner can also be placed in removal proceeding after being convicted of battery if the conviction qualifies as an aggravated felony crime of violence for immigration purposes. The term "aggravated felony crime of violence" is extremely misleading because even simple state misdemeanor convictions can often qualify as aggravated felonies for immigration purposes under certain conditions. Generally, any foreigner who commits a crime of violence for which the term of imprisonment imposed is one year or greater is removable. The term “crime of violence" derives directly from federal criminal law under 18 U.S.C. 16. In order for an offense to be a “crime of violence" the statute of conviction (or charge) must require physical force beyond a mere contact. Although the 11th Circuit presumably still holds that mere contact under the Georgia battery statute is sufficient to meet the physical force requirement for aggravated felony purposes – the United States Supreme Court has held that type of analysis to be incorrect. Next, if the actual sentence ordered for the battery calls for less than one-year imprisonment the conviction is not an aggravated felony. Be aware that courts in many states will often sentence those convicted of battery to one year in prison to be served by probation. If the battery conviction is a crime of violence (as per above), then the sentence of one year (even if only served on probation) still makes it an aggravated felony for immigration purposes. This ground of removability remains extremely complex. An aggravated felony determination can also make one permanently eligibile for U.S. citizenship under the good moral character requirement. An aggravated felony crime of violence is not itself, however, a ground of inadmissibility.

The third ground of removability applicable to foreigners convicted of domestice battery is the Domestic Violence ground of removability. Generally, a foreigner who has been convicted of a crime of domestic violence is removable. However, one should note that in order to be found a crime of domestic violence, the battery must first be a “crime of violence" (as that term is explained in the paragraph above). The “domestic" aspect of this removability ground is fairly broad and covers nearly every domestic and live-in type relationship. Thus a good general rule is that if the victim that the foreigner is charged or convicted of battering lives with him or her, then the battery will be domestic and the only remaining question is whether the battery charge or conviction is a “crime of violence" as that term is discussed above.

IV.Avoiding the Immigration Consequences of a Battery Conviction

Now that the consequences of a battery conviction have been explained, the reader may ask himself/herself “what can a foreigner do if he/she has been charged with or convicted of a battery?". The first answer, independent of any other variable, is this: do not file any document with any immigration authority, do not present yourself to immigration authorities, and go see a well qualified immigration attorney immediately. Beyond that, the answer is more complex.

If the foreigner has only been charged with battery one should see an immigration attorney immediately. One then may be able to plea to a non-violence-related offense, so long as it cannot be termed a crime of violence and as long as the sentence to which they are pleading is less than one year (if even by one day). Usually, a resourceful attorney can come up with a lesser plea that does not render a person inadmissible or removable. If the charging statute is divisible, then one should also make sure they plead to the least violent offense or carrying the smallest sentence. One must ensure that the plea and conviction reflect the specific portion of the statute. A foreigner should not agree to plead guilty until every one of the above conditions is met. One must also be careful to avoid pleading to multiple counts because there are separate grounds of inadmissibility and removability for multiple crimes or convictions (this is not discussed here but should be noted).

Even if one already has a conviction, one can and often should seek post-conviction relief. Knowledgeable criminal defense attorneys can, under certain circumstances, obtain post-conviction relief effective in preventing inadmissibility and removability. For example, if the actual sentence for a battery conviction is one year or greater but was actually served on probation, then one may be able to clarify or correct the sentence (even long after it was served) to reflect what the person actually served. Thus if one was sentenced “to 1-year confinement to be served by 12 months probation and 80 hours of community service" one may be able to get that sentence clarified to a sentence of “12 months probation not predicated on any term of confinement and 80 hours or community service". By taking out the “1 year confinement to be served by" part and indicating that the probation was not predicated on confinement, the conviction is no longer an aggravated felony because there is no longer “a term of confinement for one year or greater".

If the foreigner’s attorney did not advise them of the potential immigration consequences of their plea, then the foreigner may also be able to have the original charges dismissed. If the charges are dismissed ab initio on grounds that the plea was not entered into in a knowing and voluntary fashion as required by state and constitutional standards of due process, then the person has not been convicted and the above grounds will often not apply.

Summary

As has been explained above, a battery conviction or charge (even for simple battery under some circumstances) can have extremely serious immigration consequences and should be avoided entirely. A foreigner charged with or convicted of battery is strongly advised to see an immigration attorney to discuss the impact of the charge or conviction on his or her status.

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