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Ask Guillermo J. Senmartin, Esq. Your Own...
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105614
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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How a domestic violence charge impacts immigration status?

Customer Question

I got my green card already. She has her USCIS interview yesterday. She unfortunately has an arrest and conviction Record as explained to you. We presented the certified disposition to the interviewer yesterday. Her green card has been applied through me. The disposition says 1.Contempt of court order: violation of restraining order 2. $125 fine. 3.Found guilty after trial 4. No contact with victim. She was finger printed in court in NJ. Never handcuffed or detained by police ever. Basically after the trial she was convicted. We did not take with us copy of the Restraining Order itself. Nor we tried to obtain copy of "police report" if any is present with police. At the end of the interview the USCIS officer said, she needs to research about "Contempt of court order: violation of restraining order" , hence the decision is pending. Please advise. Officer kept the original copy of the disposition with her.

Submitted: 1 year ago.
Category: Immigration Law
Customer: replied 1 year ago.

She is working and paying taxes for past over 10 years and we have two kids born here.

Does this case fall under "domestic violence"? Because the "victim" who claimed he got a phone call , had a relationship with my wife and claimed in his complaint that my wife abused him over the phone despite he having an RO against her from the court.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Was there actual violence? Or it was just a phone call that violated the court order?

Customer: replied 1 year ago.
just the phone call. But the victim claimed that she abused him REALLY badly over the phone. The Restraining Order issued from court exactly says "For reasons placed on the record the court finds defendant did commit an act of domestic violence namely harassment". The "Complaint - Warrant" issued by court exactly says : With in the jurisdiction of this court , purposely or knowingly violate an order entered under the provisions of the prevention of domestic violence act, specifically by making direct contact with the victim and speaking with the victim on the telephone.
A disorderly persons offense". The victim's police complaint about violation of RO (by making a phone call) should be with the police. Take some time to understand the sequence. Let me know if its not clear.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

That state was North Carolina? What is the statute number of the violation under which she was convicted?

Customer: replied 1 year ago.
Nope state was NJ. When I googled the statute for NJ I found this.2C:29-9b Contempt of Domestic Violence Restraining Orderb. Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense. In all other cases a person is guilty of a disorderly persons offense if that person knowingly violates an order entered under the provisions of this act or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or substantially similar orders entered under the laws of another state or the United States shall be excluded from the provisions of this subsection..As used in this subsection, "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by a federal law or formally acknowledged by a state.
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Look at the top of page 17 at this link:

http://www.sikhcoalition.org/documents/pdf/New-Jersey-Criminal-Offenses.pdf

It's not an aggravated felony, I doubt it is a CIMT, but it could trigger deportation. Here is another link:

https://www.law.cornell.edu/uscode/text/8/1227

(ii) Violators of protection orders

Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

So she may be subject to deportation. I strongly recommend that you have a consultation with a criminal law attorney in New Jersey to see if she can get a Governor's Pardon for that case or have the conviction vacated because something was done wrong with the process. Sealing or expunging the conviction does not work.

Customer: replied 1 year ago.
How does the USCIS officer gets more information about it? As all the officer has is the disposition. Also what are the options if the deportation order comes?
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Of course they have access to the police, FBI and court databases. That's how they get all that information. An order of deportation will not come. A Notice To Appeal before the Immigration Judge for Removal Proceedings could come. It would take probably a year or 2 years or more to deport her. During that time she could ask for prosecutorial discretion, Asylum or Withholding of Removal or Cancellation of Removal if she qualifies for any of them.

Customer: replied 1 year ago.

Is she likely to get green card if the issue does not trigger deportation? Do you know if a local senator in NC can help ..as at the end it was mere a phone call.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

If it does not trigger deportation, that doesn't mean that they will approve her for the green card, but they might. And yes, I know it was just a phone call, but I think it has to do with what was said in that phone call. And no, a senator would not be able to help if the evidence is clear because they cannot change the law.

Customer: replied 1 year ago.

In case there is no deportation how long can they hold my GC? Can they stop my EAD renewals? Also meantime, which I have been getting done without issues for many years.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

They are not supposed to withhold approval, but there is no specific timeline for an approval. Sometimes people have to sue the U.S. government to get them to make a decision. However, as long as the I-485 is pending, you can do renewals of the EAD.

Let me know if you need anything else.

Customer: replied 1 year ago.
1. do you know if the definition of "domestic violence" is difference under immigration law and criminal/civil law?
2. what happens if they don't go on a deportation route and at the same time end up rejecting the green card application?
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

1) Here is the definition of "domestic violence" at around the middle of the page:

https://www.law.cornell.edu/uscode/text/8/1227

(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and

(i) Domestic violence, stalking, and child abuse

Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other 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.

2) Nothing. She can appeal the denial or re-file the petitions.

Customer: replied 1 year ago.

2) Nothing. She can appeal the denial or re-file the petitions. What happens to her EAD renewal possibilities if I-485/green card is denied. Can she re-file petitions and apply for EAD renewal? Is denial and no deportation common?

Do you know if the definition of "domestic violence" is DIFFERENT under immigration law and criminal/civil law?

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

It MIGHT be different between different states and the U.S. immigration definition. Unfortunately, that would take legal research to look up specific state cases that involved an immigration component and unless you are willing to pay me hundreds of dollars an hour for such research, that's not something that I can do for you. Regardless, it is the U.S. immigration definition that counts in regards ***** *****

As far as the EAD goes, if the case is appealed and the I-485 is thus still pending, then she can renew. If she re-files instead, then it would be a brand new EAD that she applies for.