Simple Domestic Violence Conviction (Misdemeanor) - Deportable offense?

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FrankWhite1979

Registered Users (C)
I have a situation. My Fiance went out and got drunk, came back home and started an argument. I couldn't take it so I packed my belongings and ready to go to my friend for few days. In the midst of the argument she viciously attacked me with anything she can get her hands on. So i grabbed her by the neck and pushed her away. She called the cops and i was arrested for Domestic Violence with Strangulation (Felony) in the state of NV. The Prosecutor gave me a bargain and dropped it to simple domestic violence (Misdemeanor) with 6 months suspended sentence, 48 hrs community service and anger management class. I could not afford a good attorney so i was given a public defender (PD). My Attorney (PD) did not more than simply telling me this is a good deal and it will get me out of jail and it's only a misdemeanor not a big deal. I did not retain immigration lawyer however i knew that it may be deportation offense.

I plead no contest and the court entered a judgment of guilty. After reading the police report to my girlfriend she is now saying there are inconsistencies with the report. She is willing to go to the DA/ and my attorney (PD) and change the story and tell them the truth after all. She is also willing to go to immigration court and tell the court the truth. The facts and the truth are I did nothing wrong but defended myself and I have no intentions and motives to hurt her. Now we are looking at ways I can change my plea of No Contest and go to trial as she is now willing to tell the truth of what really happened and also point inconsistencies with the police reports if the charges are not dropped to non-deportable offense.

The truth is she viciously attached me and my only crime was grabbing her by the neck and pushing her away. I have consulted few immigration attorney but they do not have a clear answer for me as to conviction if it is deportable or not.
I have done a lot of research and there were similar cases where the supreme court ruled such crime does not constitute domestic violence (but I don't know it seems that there are several interpretations out there and ruling out there). Some say misdemeanor sentence of 1 year jail time is deportable but anything less than 6 months is not deportable.

Ironically we have now reconcile, she loves me to death I love her too. We have been together for 1.5 yrs and lives together since. Now shockingly we found out she is pregnant yesterday with my child. My visa elapsed and I am out of status. We are not married yet but had plans to get married in few months and evidence shows we were talking marriage months before all these happened. She is ready to get married any day and file adjustment of status.

My questions are:
1. Is simply Domestic Violence (misdemeanor) with 6 months suspended jail sentence deportable offense?

2. The charges (ICE removal proceeding) does not list the conviction. It simple says I' m illegal and and as such is removable offense but I dont know if they will add on the conviction charges later or simple ignore the conviction charges

3. I was given 7.500 Bail Bond (but ICE office issues Release on own Recognizance)

4. I have NTA (notice to appear) at Immigration court in 2 months.

Can someone please advise me on what my chances are?

This is very difficult for me - specially that I will be having a child and face deportation. I have never been arrested in my life and never charges or committed a crime until this incident. The statue and code for the conviction simple domestic violence is NRS 200.485 (Misdemeanor NOT Felony)




Any Advice will help a great deal
Thank you so much
Francis
 
You must be married in order for your wife to be eligible to file a form I-130 on your behalf.

Because you have been issued a Notice to Appear (NTA), you will be eligible to file for adjustment of status with the Immigration Court. To be prepared for that, go to this link and read all that applies to you, start with the Fact Sheet:

http://www.uscis.gov/portal/site/us...nnel=02729c7755cb9010VgnVCM10000045f3d6a1RCRD
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The domestic violence conviction works against you. You have not provided the exact legal code citation that you were convicted of for an analysis.

A few years ago, an Immigration Judge in Las Vegas, wrote about the immigration consequences of various criminal convictions. That treatise may include an analysis of the very charge in question. Numerous other people have written similar compilations dealing with various state and federal convictions and how they relate to immigration grounds for removal.

Google for "immigration consequences of criminal convictions" and try to find the write-up for the specific charge in question.

The federal definition of “misdemeanor crime of domestic violence” is set forth at 18 U.S.C. § 921(a)(33)(A).

(33)(A) .....the term ``misdemeanor crime of domestic violence'' means an offense that--
(i) is a misdemeanor under Federal, State, or Tribal \3\ law;
and
(ii) has, as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of the victim, by a
person with whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the victim as a spouse,
parent, or guardian, or by a person similarly situated to a spouse,
parent, or guardian of the victim.

SEE: http://www.justice.gov/eoir/vll/benchbook/resources/Criminal_Law_Outline.pdf

The author is an Immigration Judge with the Las Vegas Immigration Court, Executive Office for Immigration Review (EOIR), U.S. Department of Justice. The views expressed herein are those of the author and do not necessarily represent positions of EOIR or the U.S. Department of Justice. This a write-up of some immigration consequences of criminal convictions but it is not all inclusive. No specific Nevada misdemeanor domestic violence statute is included but it was last updated in 2009. New cases are decided all the time.

It does include the following:

General Battery.

Battery under CPC § 242 is not categorically a crime of violence, and therefore an alien’s conviction for battery is not categorically a crime of domestic violence under § 237(a)(2)(E)(i) of the Act. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (mere offensive touching does not rise to the level of a crime of violence) cited favorably in Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008); see also Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006).
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You also have to overcome the presumption that any marriage you enter into now is a fake, just to get a greencard. See the INA section cut and pasted, below. The pregnancy works in your favor. The longevity of the relationship BEFORE proceedings works in your favor.

INA: ACT 245 - ADJUSTMENT OF STATUS OF NONIMMIGRANT TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE

Sec. 245. [8 U.S.C. 1255]

(a) The status of an alien who was inspected and admitted or paroled into the United States 1/ or the status of any other alien having an approved petition for classification as a VAWA self-petitioner 1aa/ may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if

(1) the alien makes an application for such adjustment,

(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and

(3) an immigrant visa is immediately available to him at the time his application is filed.

(b) Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien's lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 202 and 203 within the class to which the alien is chargeable for the fiscal year then current.

(c) 1/ Other than an alien having an approved petition for classification as a VAWA self-petitioner, 1aa/ subsection (a) shall not be applicable to (1) an alien crewman; (2) 1/ subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 101(a)(27)(H) , (I) , (J) , or (K) ) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 212(d)(4)(C) ; (4) an alien (other than an immediate relative as defined in section 201(b) ) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217 ; (5) an alien who was admitted as a nonimmigrant described in section 101(a)(15)(S) ; (6) an alien who is deportable under section 237(a)(4)(B) ; 1a/ (7) 2/ any alien who seeks adjustment of status to that of an immigrant under section 203(b) and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 274A(h)(3) , or who has otherwise violated the terms of a nonimmigrant visa.

(d) The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216 . The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 101(a)(15)(K) 2aa/ except to that of an alien lawfully admitted to the United States on a conditional basis under section 216 as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 101(a)(15)(K) .

(e) (1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien's status adjusted under subsection (a).

(2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien's right to be admitted or remain in the United States.

(3) Paragraph (1) and section 204(g) shall not apply with respect to a marriage if the alien establishes by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien's admission as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a la wful petition) for the filing of a petition under section 204(a) or 2aa/ subsection (d) or (p) of section 214 with respect to the alien spouse or alien son or daughter. In accordance with regulations, there shall be only one level of administrative appellate review for each alien under the previous sentence.
 
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They are very hard on any domestic violence charge whether a misdemeanor or a felony, it is a CIMT ( Crime involving moral turpitude ) and that is why they have issued a NTA because of that.
In cases like these I have seen people pay a good criminal lawyer and since it is a state charge have the conviction set aside and reopen the case, while it does open it up for the original felony charge but a non appearance of a victim on the court date for that matter your attorney can move to have the charge dismissed at that point.
Since everything is OK with your GF now and she is not likely to pursue it and if your attorney explain the immigration consequence of that conviction to the prosecuting attorney, in my experience they become inclined towards not objecting to the dismissal as their victim/witness also will not be cooperating either to pursue the charge.
Give this a lot of thought as dismissal of the original charge will be the best route for you now or even later in the future for you to live without any conviction history.
 
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A crime of domestic violence, especially when treated as a misd., is not necessarily a CIMT. It is a crime of passion committed in the heat of the moment and therefore, lacks the mens rea (guilty mind). A misd. violation whether categorized as assault, battery, or domestic is usually not a CIMT. Even manslaughter is rarely ever a CIMT.

The term “crime involving moral turpitude” is not defined anywhere in the INA. Rather, the term has been defined by a series of decisions issued by the Board of Immigration Appeals and the federal courts.

A phrase used in Criminal Law to describe conduct that is considered contrary to community standards of justice, honesty (virtually ALL theft and fraud no matter how minor), or good morals.

Crimes involving moral turpitude have an inherent quality of baseness, vileness, or depravity with respect to a person's duty to another or to society in general. Examples include rape, forgery, Robbery, and solicitation by prostitutes or their pimps (but not their customers).

Many jurisdictions impose penalties, such as deportation of Aliens and disbarment of attorneys, following convictions of crimes involving moral turpitude.
 
Thank you guys. You have given me good information. I am in the process of hiring an attorney who was an immigration judge. I do have few questions.
How can Immigration consider the marriage fake when.

1. We have been and live together for 1.5 yrs.
2. We talked about getting married and had plans of getting married in the next few months and there are emails and evidence to even prove this before this incident occurred. We even looked at rings etc.
3. She is pregnant with my child.

If Immigration considers this to be a fake marriage then I must say that USA has to be the most inhumane country in the world, with that ruling alone I am more than prepared to depart at will and will never come back and she is ready to move out of USA too. It is just not right.

On the Domestic Violence charges I pleaded no contest to NRS200.485 (the Nevada Statue)
1. After i read the police report to her she is stunned and shocked. Matter of fact is that the only evidence of fight is small thumb print on her lower neck as i grabbed her and pushed her away.

2. She was intoxicated at the time.
3. She is willing to talk to the DA and my Attorney and also point out consistency with the Police Report.
4. This is a major screw up - My attorney never advise me of any strategy rather than this is a good deal to plea guilty or no contest. She did not even read the police report or get my side of the story.
5, She is willing to testify under oath to the fact that I did not start the fight or even harmed her. She was just upset and intoxicated and attached me.
6. The Alleged bruise is minimal - no attacks, no punches no mark anywhere other than the little thumb mark from pushing her away.

My mistake by pushing her away I was jailed for 17 days - 22 hrs locked down. Could not even make bail because I had immigration hold.

So after all she is very sorry for all the trouble and ready to go the immigration court to testify what really happend and that I did not attacked on strangle her. I will maintain my innocence until the end.
At the same time she is also willing to Go to the DA and the Court to testify once more and tell the story and also point out inconsistencies.

I feel that I have been robbed of justice, denied due process and the DA is only interested in how many convictions they can get.
It is extremely sad to see how justice in the USA out of all countries can be so cruel.

Thanks for all help
Francis
 
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These are the sections of law that your attorney must analyze for you and find suitable caselaw to address them under. Your attorney needs to determine the worst possible characterizations that these offenses can be get under immigration law (aggravated felony? crime of violence? crime of domestic violence? CIMT?) and defend against those worst case scenarios.

The Immigration Judge, like USCIS etc... is stuck with the law as it is written and as it has been interpreted by the BIA and Federal Courts. Wait and see how the American system works.

NRS 200.485 Battery which constitutes domestic violence: ................ (This is what you provided.)

NRS 200.485 reveals the punishment. The punishment that you got relates to the underlying criminal offense at NRS 33.018, shown below.

NRS 33.018 Acts which constitute domestic violence.

1. Domestic violence occurs when a person commits one of the following acts against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child:

(a) A battery.

(b) An assault.

(c) Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform.

(d) A sexual assault.

(e) A knowing, purposeful or reckless course of conduct intended to harass the other person. Such conduct may include, but is not limited to:

(1) Stalking.

(2) Arson.

(3) Trespassing.

(4) Larceny.

(5) Destruction of private property.

(6) Carrying a concealed weapon without a permit.

(7) Injuring or killing an animal.

(f) A false imprisonment.

(g) Unlawful entry of the other person’s residence, or forcible entry against the other person’s will if there is a reasonably foreseeable risk of harm to the other person from the entry.

2. As used in this section, “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context.

NRS 200.481 Battery: Definitions; penalties.

1. As used in this section:

(a) “Battery” means any willful and unlawful use of force or violence upon the person of another.

NRS 200.471 Assault: Definitions; penalties.

1. As used in this section:

(a) “Assault” means:

(1) Unlawfully attempting to use physical force against another person; or

(2) Intentionally placing another person in reasonable apprehension of immediate bodily harm.


As for the marriage issue, you have good evidence to overcome the statutorily imposed presumption of a greencard marriage.
 
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BigJoe,
Thanks for the reply - very helpful. I looked on the internet and found few cases where the judges ruled some misdemeanor cannot be considered as crime constituting domestic violence however they are all open to different interpretations and I also read somewhere that immigration base the case on the extent of the crime and the punishment. I remember the ICE agent (who was extremely nice) asked me for the jail sentence which I told him it was suspended 6 month sentence. Then asked me about the fine and told him 48 hrs of community service and $341 fine and anger management classes.
He then said - He would give me Release on own recognizance instead of the 7.500 Bail Bond and issued me Notice to Appear (NTA).
Now what is interesting now is the NTA paper does not list the conviction as the charge.
It basically states that I over stayed my visa and broke sections 237(a) (1) (B) of the immigration Act - admission as a non-immigrant under section 101(a)(15) of the Act. Technically these charges for the removal proceeding are based on over staying my visa however I am not sure if Immigration would amend the charge to include the Domestic Violence charges. Off course Immigration knows about it and that's how I ended in Immigration detention so I am surprised why the charges and NTA does not include the Domestic Violence charge. Perhaps they will amend the charge later? Any ideas?
As worse as it sounds the fact the my fiance (soon to be wife) is going to court with me to testify may help a great deal. As far as the damages it is nothing more than a small thumb prints bruise. I am actually very surprised the DA actually takes pride in prosecuting these sorts of stuff. It is appalling and injustices.
It is shameful. I am also surprised that the Judge and the court simply overlook the other way. Justice is big business in America. I hope that the the courts and the prosecutors will stand for what they are suppose to uphold (True Justice). I now believe that there are many innocent people jailed.

I am actually shocked by the entire process.
 
Frank,

Look at the current facts.

You are not married. You have not had an I-130 filed and approved on your behalf. You do not have a visa immediately available. You have no basis to file for adjustment of status. Hopefully, things will change by the time you get into Immigration Court. IF you get married, your USC wife can immediately file an I-130 on your behalf and it must get approved in time to allow you to be eligible to file for adjustment of status at the right time. You cannot file an I-130 with the Immigration Judge because he has no authority to decide that petition, it must already be approved.

SEE: http://www.uscis.gov/portal/site/us...nnel=02729c7755cb9010VgnVCM10000045f3d6a1RCRD and take careful note of the pre-order instructions.

As you may have read in the Fact Sheet, IF you have an approved I-130 and a visa immediately available as an Immediate Relative of a USC, you will be able to file an application for adjustment at your Master Calendar Hearing. At that point you would be instructed how to proceed and the manner in which you would need to contact USCIS to pay fees and arrange for fingerprinting.

At the time you were arrested, your Final Court Disposition did not exist. The fact that the ICE Officer had to get pertinent details from you means that he did not have a disposition in front of him. At that point all he had available was the fact that you overstayed your visa. So, that was the only charge listed, initially. Once they get a disposition, they may consider adding a charge based on the arrest.

At that point, it could go any of several different ways. They might have never dealt with the specific charge before and could analyze it themselves to see if it is worth charging you. They may be too lazy to do an analysis and leave it for the judge to decide. They may have dealt with the specific charge before and may have an idea of how it will be treated in Immigration Court. The charge coupled with the specific punishment may have been upheld as deportable or it may have been held insufficient. The specific charge but with a different punishment may have come up before and either found deportable or insufficient. If they know that it won't be held to be deportable, they won't amend the NTA. If they believe it will be found deportable or are unsure, they probably will amend the NTA.

So, going back to court to work on either reducing or dismissing the charge could only help the situation.

If it does turn out to be deportable, then your attorney has to help you figure out if any waiver is available and if you might qualify for it.

Good luck,
 
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