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Duty of Criminal Defense Lawyer with Respect to Domestic Violence and Deportation
According to the American Bar Association Standards for Criminal Justice, Pleas of Guilty, Standard 14-3.2(f) (4th ed. 2002) – Criminal Defense lawyers have an obligation to explain collateral consequences that might ensue from entry of the contemplated plea. With respect to a plea the criminal lawyer in the District of Columbia needs to know that domestic violence offenses can cause deportation from the United States for non-citizens.
Removable Domestic Violence Offenses
Pursuant to 8 U.S.C. §1227(a)(2)(E)- Any non-citizen who at any time after admission is convicted of the following:
A crime of domestic violence
A crime of stalking
A crime of child abuse
A crime of child neglect and/or
A crime of child abandonment
A Crime of “Domestic Violence” means any “Crime of Violence,” pursuant to 18 U.S.C. §16, committed against a person classified as the following: ●A current or former spouse● A person with a child in common ●A person cohabiting w/ the defendant● A person similarly situated to a spouse● A person from whom the defendant is protected by family & domestic violence laws- family or a household member
IMPORTANT: Stay Away Orders and Civil Protection Order Violations – 8 U.S.C. §1227(a)(2)(E)(ii)- A court’s factual finding that a non-citizen has violated a CPO or stay away order will trigger removal proceedings. No conviction is necessary; such a finding by a court is sufficient to trigger removal and is effective for violations of CPO occurring after September 30, 1996. The statute defines a protection order as any injunction, including temporary or final orders issued by civil and criminal courts, as a means of preventing acts of domestic violence.
AGREEMENTS CONSTITUTING CONVICTIONS
Any guilty plea, plea of nolo contendere or Alford plea, straight probation, regardless of whether the sentence is suspended or imposed. See 8 U.S.C. §1101(a)(48)(B).
Deferred sentencing agreements, requiring a guilty plea even if allowing the defendant to later withdraw the plea. See Matter of Roldan, 22 I&N 512 (BIA 1999).
Drug Convictions with expungement provisions such as first-time drug offender provisions are still convictions for immigration purposes, except in the 9th Circuit. Ibid; see also 8 U.S.C. §1101(a)(48)(A).
AGREEMENTS NOT CONSTITUTING CONVICTIONS
Stet Docket Agreements
Juvenile Adjudications (this does not apply juvenile clients who are tried as adults). See Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981).
Diversion Agreements with Office of United States Attorney (Be sure that the client does not make any admissions of guilt as those admissions can be used in removal proceedings IMPORTANT: Non-citizen clients cannot apply for naturalization while on probation or parole. See 8 C.F.R §316.10(c). Dated: 11/20/08 for NLADA P