DOMESTIC BATTERY CONVICTION (ILLINOIS) AND REMOVAL FROM THE UNITED STATES


Domestic violence and related convictions will cause immigration
problems not only for individuals that have a pending application for
permanent resident status (green card) with the local CIS office but
also for individuals that are already permanent residents or those who
seek to apply for United States citizenship through naturalization.

Several years ago, Congress amended the Immigration law to include a
conviction for domestic violence as ground of deportability. A felony
conviction for domestic violence can serve as a basis for deportation
even if no jail time was imposed or actually served. 8 U.S.C. §
1227(a)(2)(E)(i). A misdemeanor domestic violence conviction is not
necessarily a "crime of violence" for deportation purposes, unless the "offense
has as an element the use, attempted use, or threatened use of
physical force against the person or property of another."

In Flores v. Ashcroft the Seventh Circuit held that a respondent
convicted under the Indiana Battery statute was not deportable for a
crime involving domestic violence because there was not a substantial
risk that the offense involved the use of force. November 26, 2003,
2003 U.S. App. LEXIS 24051
 
Sec. 12-3.2 Domestic Battery
(720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)

  (a) A person commits domestic battery if he intentionally or knowingly
without legal justification by any means:

 (1) Causes bodily harm to any family or household member as defined in
subsection (3) of Section 112A-3 of the Code of Criminal Procedure of
1963, as amended;

(2) Makes physical contact of an insulting or provoking nature
with any family or household member as defined in subsection (3) of
Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

(b) Sentence. Domestic battery is a Class A Misdemeanor. Domestic
battery is a Class 4 felony if the defendant has any prior conviction
under this Code for domestic battery

 Sec. 12-3.3 Aggravated domestic battery
 (720 ILCS 5/12-3.3)

(a) A person who, in committing a domestic battery, intentionally or
knowingly causes great bodily harm, or permanent disability or
disfigurement commits aggravated domestic battery.

(b) Sentence. Aggravated domestic battery is a Class 2 felony. Any order
of probation or conditional discharge entered following a conviction for
an offense under this Section must include, in addition to any other
condition of probation or conditional discharge, a condition that the
offender serve a mandatory term of imprisonment of not less than 60
consecutive days. A person convicted of a second or subsequent violation
of this Section must be sentenced to a mandatory term of imprisonment of
not less than 3 years and not more than 7 years or an extended term of
imprisonment of not less than 7 years and not more than 14 years.
(Source: P.A. 91445, eff. 1‑1‑00.)

In Flores v. Ashcroft the Seventh Circuit held that a respondent
convicted under the Indiana Battery statute was not deportable for a
crime involving domestic violence because there was not a substantial
risk that the offense involved the use of force. November 26, 2003,
2003 U.S. App. LEXIS 24051
http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf

REMOVABLE OFFENSES

The term "conviction" under Immigration law: * * * The term "conviction"
means with respect to an alien, a formal judgment of guilt of the alien
entered by a court or, if adjudication of guilt has been withheld, where
(i) a judge or jury has found the alien guilty or the alien has entered
a plea of guilty or nolo contendere or has admitted sufficient facts to
warrant a finding of guilt, and (ii) the judge has ordered some form of
punishment, penalty, or restraint on the alien's liberty to be imposed.
* * * (8 U.S.C. 101(a)(48)(A)

Whether an aggravated felony or crime of moral turpitude, it is
important to note that it is the “conviction” that counts. Dismissals,
acquittals, adjudications (juvenile convictions) or no-paper charges do
not count for immigration purposes. However, pleading guilty or even
admitting to the facts supporting the elements of the offense may be
considered as a conviction, even if the crimminal law does not recognize
the conviction until the time a sentence has been entered (Judgment and
Commitment Order). Sentences containing fines or probation constitute a
conviction for immigration purposes. A deferred sentence counts only
when there has been an admission of the facts beforehand. Convictions
that are later set aside or expunged count as convictions if there has
been an admission of the facts. In determining the length of the
sentence, immigration authorities look to the term of the actual
sentence, and not to the time that the offender is exposed to by
statute.

Probationary sentences will trigger immigration consequenses if a term
of incarceration is imposed but suspended. Probation will not trigger
immigration consequences if the judge opts not to impose a sentence at
all (known as an imposition of the sentence suspended, or an ISS
sentence). In the case of an ISS sentence, if the candidate successfully
completes probation, there are no immigration consequences because an
actual sentence was never imposed. However, immigration consequences are
triggered if the offender's probation is ever revoked, as the court will
impose a sentence at the time of revocation. Thus, for immigration
purposes it always best to request an ISS sentence for a probationary
candidate.

Crimes of Moral Turpitude. Any alien who - (I) is convicted of a crime
involving "moral turpitude" committed within five years (or 10 years in
the case of an alien provided lawful permanent resident status under
section 1255(j) of this title) after the date of admission, and (II) is
convicted of a crime for which a sentence of one year or longer may be
imposed, is deportable.

Multiple Criminal Convictions. Any alien who at any time after admission
is convicted of two or more crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct, regardless of
whether confined therefore and regardless of whether the convictions
were in a single trial, is deportable.

Felony aggravated domestic battery is a "crime involving moral
turpitude" (CIMT), an aggravated felony (only if one year of jail or
more is actually imposed), and constitutes a domestic violence ground
for deportation.

A felony aggravated battery conviction would be enough for ICE to
charge as CIMT within 10 years of non citizen obtaining green card
and/or as Agg. Felon/crime of violence if jail sentence imposed was more
than one year.

Aggravated Felony: Any alien who is convicted of an aggravated felony
(Sec.1101(a)(43) at any time after admission is deportable. (worst
provision; no bail or relief)
(f) a crime of violence (as defined in section 16 of title 18, but not
including a purely political offense) for which the term of imprisonment
is at least one year; A "crime of violence" under § 16(b) has two
elements: (1) that the crime is a felony; and (2) that the crime, "by
its nature," involves a substantial risk that physical force may be
used. Under federal law, a crime is a "felony" if the maximum term of
imprisonment authorized for the offense is "more than 1 year." See 18
U.S.C. § 3559(a) (Q) an offense relating to a failure to appear by a
defendant for service of sentence if the underlying offense is
punishable by imprisonment for a term of 5 years or more;

Domestic Violence

8 U.S.C. § 1227(a)(2)(E)(i): Any alien admitted to the United States
shall, upon the order of the Attorney General, be removed if the alien
is within one or more of the following classes of deportable aliens: . .
. (2)(E)(i) Any alien who at any time after admission is convicted of a
crime of domestic violence . . . . For purposes of this clause, the term
"crime of domestic violence" means any crime of violence (as defined in
section 16 of Title 18) . . . by any 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.

"Crime of Violence" With respect to the first prong of the §
1227(a)(2)(E)(i) analysis, 18 U.S.C. § 16 defines a "crime of violence"
as follows:

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or (b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing
the offense.

A "crime of violence" under § 16(b) has two elements: (1) that the crime
is a felony; and (2) that the crime, "by its nature," involves a
substantial risk that physical force may be used. Under federal law, a
crime is a "felony" if the maximum term of imprisonment authorized for
the offense is "more than 1 year." See 18 U.S.C. § 3559(a)

The BIA states that an offense does not fall within the definition of a
"crime of domestic violence" under 8 U.S.C. § 1227(a)(2)(E)(i) unless
(1) the crime is a "crime of violence" as defined in 18 U.S.C. § 16, and
(2) the person against whom the crime was committed was a "protected
person" within the meaning of § 1227(a)(2)(E)(i). Applying its
traditional categorical approach to criminal convictions, the
Immigration Judge/BIA would hold that (1) a felony conviction
constituted a "crime of violence" because the crime, as defined by
Illinois case law, requires an intentional touching that caused bodily
harm and was non-consensual and, therefore, involves a substantial risk
that physical force may be used, and (2) victim /spouse was a "protected
person" under Illinois criminal and civil law.

[DOMESTIC VIOLENCE: The offense of aggravated stalking pursuant to
section 750.411i of the Michigan Compiled Laws Annotated is a crime
involving moral turpitude Matter of AJAMI, Interim Decision #3405, 1999)

A single conviction for misdemeanor domestic battery is not an
Aggravated felony- as a crime of violence, and is not necessarily CIMT,
unless non citizen has two or more unrelated convictions for CIMT.

A misdemeanor domestic battery conviction- regardless of jail time
imposed or served by non citizen –does not necessarily fall within
domestic violence Ground of removability. Flores V. Ashcroft

A simple misdemeanor battery (not domestic battery) conviction, and jail
sentence of up to 364 days, charged as "offensive touching" (not bodily
harm), could be argued does not constitute CIMT and clearly does not
constitute a domestic violence or aggravated felony grounds for removal.
________________________________________________________________________

An Immigration Judge in Arizona recently terminated a deportation
proceeding based on domestic violence-related misdemeanor convictions
after concluding that the convictions were not “crimes of violence”
under the Immigration and Naturalization Act (INA).

The INA describes various types of criminal conduct that can render an
alien deportable. This list, increased by the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) in 1996, includes convictions
for domestic violence.

An alien charged with being deportable in an Arizona case was convicted
of “misdemeanor assault / domestic violence”and of “misdemeanor
Disorderly conduct / domestic violence”under state law. The Immigration
and Naturalization Service (INS) then sought his deportation, charging
that the defendant was deportable under the domestic violence provision
of INA §237(a)(2)(E)(i). This section defines a “crime of domestic
violence”as any “crime of violence”committed against a person in one of
several listed relationships with the perpetrator, e.g., a current or
former spouse.

“Crime of violence,”in turn, is defined by another federal provision (18
U.S.C. §16): (a) an offense that has an element the use, attempted use,
or threatened use of physical force against the person or property of
another, or (b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing
the offense.

The respondent in the Arizona case argued that he could not be deported
under the INA domestic violence ground for deportation because neither
of his misdemeanor convictions met the federal statute’s definition of
“crime of violence.”According to the Board of Immigration Appeals, the
federal definition the classification described in the INA’s deportation
provisions supersedes the state law definition to avoid inconsistent
results for aliens similarly situated.

Specifically, in the Arizona case respondent argued that subpart (b) of
the federal definition of “crime of violence”did not apply to his case
because the offenses to which the defendant pleaded guilty were
Misdemeanors, not felonies.

The respondent also argued that subpart (a) did not apply to him because
the domestic violence provision required the “use, attempted use, or
threatened use of physical force”directed against a statutorily
protected victim - elements not required for either of his misdemeanor
State convictions.

Essentially, the Arizona domestic violence laws under which the
respondent was convicted were broader in scope than the INA definition,
because they could have allowed the prosecution of acts that did not
involve attempted physical force or disorderly conduct directed to a
victim. Evidence of misdemeanor domestic violence convictions under
state law alone did not clearly and convincingly demonstrate that the
respondent had actually committed the federally-defined domestic
violence that renders a person deportable.

The Immigration Judge held that the INS failed to prove that the
defendant actually committed domestic violence as defined by the INA
(that is, he used or threatened physical force) in the incident for
which he had been convicted under Arizona law. The judge thereafter
terminated the defendant’s deportation proceedings and ordered immediate
release from INS custody.
________________________________________________________________________

FELONY DOMESTIC BATTERY IS A CRIME OF DOMESTIC VIOLENCE REGARDLESS OF
JAIL TIME ACTUALLY IMPOSED OR SERVED

In a recent case the defendant pleaded guilty to a domestic related
battery and was sentenced to eleven months' incarceration, suspended,
and was placed on probation for a term of three years. Based on this
conviction, the ("INS") commenced removal proceedings and charged that
he was removable under 8 U.S.C. § 1227(a)(2)(E)(i). Federal courts
upheld the removal order.









Posted: Sun - November 30, 2003 at 09:35 AM          

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