A crime of violence is defined by 18 USC 16 as (a) an offense with 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 a person or property of another may be used in the course of committing the offense. Contact us to evaluate whether your offense carries the risk of “substantial force” required by the statute.
An aggrevated felony under INA Section 101(a)(43) includes any crime of violence for which the term of imprisonment imposed (regardless suspension) is at least one year. In analyzing whether a particular offense is a crime of violence, an experienced immigration attorney will also determine what constitutes the term of imprisonment under a particular state statute.
The Board of Immigration Appeals’ definition of the crime of violence includes any offense where either:
- the elements of the offense must be such that the use, attempted use, or threatened use of physical force is an element; OR
- the nature of the crime – as evidenced by generic elements of the offense msut be such that its commission ordinarily would present a risk that physical force would be used against a person or propety of another irrespective of whether the risk develops or harm actually occurs.
Under Supreme Court’s holding in Leocal v. Ashcroft, 543 U.S. 1 (2004), an offense is not a crime of violence if the conviction does not require a mens rea or if a person may be convicted simply on a showing of negligence or less than intentional conduct. A driving while under influence (DUI) or driving while intoxicated (DWI) causing serious bodily injury under Florida law was not a crime of violence because the use of physical force under 18 U.S.C. Section 16(b) requires higher mens rea than the merely accidental or negligent conduct involved in the DUI. A crime of violence under 18 U.S.C. section 16(a) must include a determination that a use of force is an element of the crime. For example, Illinois harassment by telephone is not a crime of violence under Section 16(a) because the offense does not require the use, attempted use, or threatened use of physical force.
Domestic violence, stalking offenses, protective order violations and child abuse crimes are crimes that might subject a foreign national to deportation and removal from the United States as described in INA 237(a)(2)(E). If an alien is convicted of a crime of domestic violence he may be removed on three grounds: as a person convicted of a crime of domestic violence, of moral turpitude or aggravated felony. Any alien who, at any time after entry, is convicted of a crime of domestic violence, stalking, or child abuse, neglect or abandonment is removable. Domestic violence is defined by 18 USC 16 as a crime of violence against a person, committed by a current or former spouse of the person or an individual with whom he shares a child in common, by an individual with whom he is cohabiting or has cohabited 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 other state, Indian tribal government or unit of local government.
A crime constitutes domestic violence if:
1. it is a crime of violence as defnined by 18 USC 16; and
2. the victim is “a protected person” within the meaning of 8 USC 1227(a)(2)(E)(i).
For example, a police report can be considered in proving that California Penal Code 243(e)(1) is a crime of violence to establish deportation under the provision for a crime of domestic violence where the report was prepared in connection with the arrest and was stipulated to in writing as the basis for the guilty plea. On the other hand, a conviction for battery is not a domestic violence under Indiana law even though the respondent beat his wife.
In addition to classification as a crime of domestic violence, an alien convicted of a domestic violence may be removed for conviction of crime of moral turpitude. Specifically, INA 237(a)(2)(A)(i) states as follows:
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 245(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 is deportable.
Under INA 101(a)(43)(F), an alien may be removed if domestic violence is found to be a crime of violence and, therefore, an aggravated felony as defined by 18 USC 16. If you are charged with a crime of violence or domestic violence contact our office to determine whether you are eligible for any relief from removal.
Child abuse is construed by Board of Immigration Appeals very broadly to encompass any offense involing an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. Not all crimes against a child fall within this definition. Therefore, it is imperative to consult with an experienced immigration attorney to determine whether the crime a foreign national has committed is actually a crime against a child.