Most attorneys are aware that a finding of guilt in a criminal matter may create a consequence for his or her client if he or she is not a U.S. citizen.  For certain crimes, pleading guilty or being found guilty at trial will cause loss of lawful status, denial of a future application of citizenship, deportation, and/or denial of eligibility for relief from removal.  What about a judicial or administrative finding, or adjudication outside of the criminal court? This is an area that is not as clear cut, and understandably creates apprehension for both parties and attorneys. 

Whenever possible, a non-citizen party who is the subject of a child protection investigation, harassment order, or order for protection should avoid any negative judicial or administrative finding such as maltreatment or domestic abuse.  The issuance of a harassment restraining order or order for protection creates a risk that violation of the order will result in the respondent being charged with a crime.  Findings in a court order may negatively portray the respondent’s good moral character. 

A safe option for any case is a denial of the abuse alleged and a request that the decision-maker refrain from making any findings.  This is an acceptable form of resolution in a civil harassment restraining order or an order for protection, preserving substantial power for the respondent in determining the outcome of the case, and giving the petitioner the order for no contact that he or she seeks.  Judicial officers explain this option to respondents at the initial hearing, and it is quite favorable when the petitioner’s allegations are at least partially true (or sound quite convincing).  Since the standard of evidence in a harassment or order for protection case is much lower than the criminal standard of proof beyond a reasonable doubt, an agreement for the order to be issued without findings is often the best option for a respondent seeking to protect his immigration status.  As long as the respondent does not violate the court order, he can be assured that he will not be at risk of an immigration consequence. 

On the other hand, if the respondent violates the court order, this may give rise to immigration consequences. Under the Immigration and Nationality Action, Section 237(a)(2)(E)(ii), a foreign national is removable if a court determines that he or she “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.” A conviction for a violation is not necessary to trigger the removal ground. Not all violations of a protection order will trigger section 237(a)(2)(E)(ii). Protection orders often contain a variety of conditions. The plain language of section 237(a)(2)(E)(ii) states that the violation must be of a portion of the order that protects against violence, harassment, or bodily injury. Violation of provisions requiring attendance at a counseling program or payment of costs for supervision during parenting time are not violations of portions of the protection order that protect against violence and abuse, and therefore do not trigger section 237(a)(2)(E)(ii). See Matter of Strydom, 25 I. & N. Dec. 507, 511 (BIA 2011). In contrast, a violation of the “no-contact” portion of a protection order does trigger removability under section 237(a)(2)(E)(ii). Id. If a respondent must admit to a violation of a protection order, the safest option is generally to request that the judge avoid making findings as to which portion of the order the respondent violated unless it is clear that the violation did not involve a portion of the protection order that protects against violence and abuse.

Even if a respondent is not actually convicted of a violating an order for protection or harassment restraining order, an immigration judge or officer may look closely at a civil finding of violation.  For example, a petitioner who applies to extend an Order for Protection may allege that the respondent violated the order, even though there is no criminal conviction to support it.  If the state court judge agrees a violation occurred, this finding will impact the respondent’s immigration application if the violation relates to the section of the order that protects against violence, harassment, or bodily injury, making the respondent removable from the U.S. 

For immigration purposes, a criminal conviction requires one of the following: 1) a guilty plea; 2) a nolo contendere (no contest) plea; OR 3) an admission of sufficient facts to warrant a finding of guilt; AND the Court must order some form of punishment, penalty, or imposition of restraint on a person’s liberty.  INA Section 101 (a)(48)(A).  When there is only a civil finding of domestic abuse, such as in an order for protection, without any “guilty plea”, this creates a question of whether the admission of facts could result in immigration consequences.  Admissions in civil proceedings can also potentially impact a person’s ability to prove that he is admissible to the United States.  Under section 212 of the Immigration and Nationality Act, a person who admits having committed a CIMT or who admits committing acts which constitute the essential elements of a CIMT may be found inadmissible.  If a respondent in an order for protection testifies at the evidentiary hearing and admits to hitting the petitioner, those findings could potentially be used to deny the respondent admission to the United States, either at the border, or when the person applies for residency or other immigration benefits that require admissibility or good moral character.

An immigration attorney should be aware of any civil court records or transcripts that could come into play when representing a client seeking cancellation of removal before the immigration court, a U visa, naturalization, or other benefit before U.S. Citizenship and Immigration Services.  However, an astute immigration attorney will answer the relevant application questions carefully and not provide any records that the government or court has not requested.

If you have any questions regarding a child protection, harassment restraining order, or order for protection matter, please schedule free consultation.