Domestic Violence Findings and Protective Order Violations
One limb of this ground is satisfied by a judicial determination that a civil protection order was violated. No conviction is required, no criminal charge is required, and the finding can be entered in a family case while the criminal docket is quiet.
The rule in short
The domestic violence ground has four limbs. Three require a conviction: a crime of violence committed against a person in a defined domestic relationship, a crime of stalking, and a crime of child abuse, neglect or abandonment. The fourth requires only a court's determination that the client violated the part of a protection order protecting against credible threats of violence, repeated harassment or bodily injury, which a civil contempt finding can supply.
This ground is drafted in four limbs, and only three of them require a conviction. The fourth is satisfied by a court's determination that the client violated a protection order. That determination can be entered by a family court, in a civil enforcement proceeding, with no charge filed and no criminal disposition to negotiate. Defense counsel handling the criminal case therefore has to watch a docket that is not counsel's own.
What the three conviction limbs require
The first limb reaches a crime of domestic violence, which the statute builds from two separate pieces. The offense must be a crime of violence under the federal criminal definition, and it must have been committed against a person standing in one of the listed relationships. Neither piece is supplied by the name of the charge. A statute labeled domestic assault can fail the force requirement, and a statute with no domestic label at all can satisfy both.
The force requirement has narrowed. The federal definition once had two halves: an elements clause requiring the use, attempted use or threatened use of physical force, and a residual clause covering offenses carrying a substantial risk that force would be used. The Supreme Court struck the residual half as unconstitutionally vague, leaving the elements clause alone. The Court has separately held that physical force in this context means violent force capable of causing physical pain or injury, not the slight contact that satisfies a common-law battery.
That reading is what makes a state battery statute worth reading closely. Where a statute is satisfied by any offensive touching, it does not categorically require violent force, and it falls outside the limb unless the statute is divisible and the record shows the violent alternative. The same analysis governs several other categories at once, and it is set out at length in how a charge is measured against the crime of violence definition.
The relationship, and how it may be proved
The listed relationships are broad: a current or former spouse, a person with whom the client shares a child, a cohabitant or former cohabitant living as a spouse, a person similarly situated to a spouse under the domestic violence laws of the jurisdiction, and anyone protected from the client's acts under those laws. The breadth means the relationship rarely fails on the facts. It fails, when it fails, on proof.
Most state offenses do not carry the relationship as an element. That creates a question adjudicators have answered differently. The agency has treated the relationship as a circumstance that may be established by reliable evidence outside the elements, including police reports and charging papers. Some courts of appeals have accepted that approach and others have insisted that the conviction record alone may be consulted. The split is unresolved, and it decides cases.
Charging practice supplies most of the material. Many jurisdictions add a domestic designation to the caption or a special allegation to the count, sometimes for docketing and sometimes to unlock a sentencing enhancement. Where the designation is not an element of anything, its presence in the papers is precisely the reliable evidence an adjudicator taking the broader approach will rely on. Asking that it be struck as part of the disposition costs a prosecutor little where no enhancement is being sought.
| Limb | What triggers it | What the record has to show |
|---|---|---|
| Crime of domestic violence | Conviction of a crime of violence | A force element in the statute and a listed relationship |
| Crime of stalking | Conviction under a stalking statute | Elements matching the generic definition adjudicators apply |
| Child abuse, neglect or abandonment | Conviction | Elements within a definition the agency reads broadly |
| Protection order violation | A court determination, no conviction | An order with protective provisions and a finding of violation |
| Support or custody order | Nothing under this ground | Excluded from the definition of a protection order |
A no-contact condition imposed at the first appearance, or a temporary order obtained while the criminal case is pending, can meet the statutory definition of a protection order. Its protective provisions are then live for as long as it stands, and a violation found later reaches the ground even if the criminal charge is dismissed outright. Dismissal of the case does not dissolve the order.
The stalking and child abuse limbs
Neither term is defined in the immigration statute, so both are given generic definitions by adjudication, and both have drifted. The agency has described a generic stalking offense in terms of a course of conduct directed at a person that would cause reasonable fear for safety, and courts have divided over whether state statutes reaching fear of non-physical harm fit inside it. A state harassment statute renamed as stalking may or may not qualify.
The child abuse limb is broader than the phrase suggests. The agency has read it to cover offenses involving harm to a child's physical or mental well-being, including some endangerment and neglect provisions that require no injury and no intent to harm. Several circuits have resisted the broader reading where the state offense reaches purely negligent conduct. The practical point for a live case is that a low-grade endangerment count is not a safe substitute for an assault count.
A finding entered without any conviction
The fourth limb reaches a client enjoined under a protection order whom a court determines has engaged in conduct violating the portion of the order protecting against credible threats of violence, repeated harassment or bodily injury. The definition of a protection order covers temporary and final orders, civil and criminal, whether obtained by independent action or entered while another proceeding is pending. Support and custody orders are excluded, and nothing else is.
The limb operates without regard to how the order came to be entered, so long as the client was enjoined and the determination follows. What it does require is that the provision violated be one of the protective ones. A finding that the client missed a payment, or returned a child late, does not reach the limb, because those provisions sit outside the statutory definition of a protection order.
Two consequences follow. A civil contempt finding entered in a family case can satisfy the limb without any criminal charge, and a criminal case that is dismissed or resolved without a conviction does not close the exposure while the order remains in force. Where the client faces both dockets, defense counsel and family counsel are working on one problem, and a finding conceded in one forum cannot be repaired in the other.
Where the client's own history includes abuse, the criminal disposition and any protective order can bear on routes that depend on that history, and the assessment is worth putting to humanitarian immigration lawyers before either case is resolved. The order that ends the criminal matter cheaply can be the document that governs everything afterward.
A conviction under any of these limbs also travels with a firearm prohibition, which raises a separate ground of its own, and the interaction is described in what a firearm conviction does to removability. Keeping the relationship and the force allegations out of any recitation the court is asked to accept is the same discipline discussed in what a factual basis has to establish, and it is worth more here than in almost any other category.
Points to carry away
- A crime of domestic violence is a crime of violence under the federal definition committed against a person in one of the listed domestic relationships.
- The force element requires violent force capable of causing physical pain or injury, so an offensive-touching battery may fall outside it.
- The Supreme Court struck the residual half of the federal crime of violence definition as unconstitutionally vague, leaving the force clause to do the work.
- The relationship is not an element of most state offenses, and adjudicators differ over what evidence may establish it.
- The protection order limb needs only a court determination of a violation, so a civil contempt finding entered in a family case can reach it.
- Support and custody orders are excluded from the definition of a protection order.
Questions readers ask
Does a plea to a non-domestic offense avoid the ground entirely?
Not by itself. The limb requires a crime of violence and a listed relationship, so a plea to an offense without a force element removes the first requirement and the label matters less than the elements. A disorderly conduct or trespass resolution is outside the limb because neither requires force. But a protective order entered in the same case remains live, and a later finding that its threat or harassment provisions were violated reaches a separate limb that does not depend on the offense of conviction at all.
Can a finding entered by consent trigger the protection order limb?
The provision asks whether a court determined that the client engaged in conduct violating the protective portions of the order. A stipulated or agreed finding is still a determination by the court, and nothing in the text distinguishes a contested finding from an uncontested one. Family lawyers frequently resolve enforcement motions by agreeing to a finding in exchange for a lenient remedy, because in the family case the finding costs little. Where the client is a non-citizen, that trade can be the most expensive step in either proceeding.
Which parts of a protection order are covered?
The statute reaches the portion of an order that protects against credible threats of violence, repeated harassment, or bodily injury to the protected person. Provisions governing support, custody or property division are excluded from the definition of a protection order. What sits in between has divided adjudicators. A simple no-contact clause can be read as part of the protective machinery or as an administrative condition, and the outcome often depends on how the issuing court described the purpose of the clause in the order itself.
Sources
- 8 U.S.C. § 1227 — Deportable aliensContains all four limbs, the list of qualifying domestic relationships, and the definition of a protection order that excludes support and custody orders.
- 18 U.S.C. § 16 — Crime of violence definedSupplies the force definition incorporated by the first limb, including the residual clause that no longer carries weight.
- 18 U.S.C. § 921 — DefinitionsDefines a misdemeanor crime of domestic violence for firearm purposes, a differently drafted test that a single plea can satisfy at the same time.
- 8 U.S.C. § 1101 — DefinitionsDefines conviction, which explains why the protection order limb operates without one and the other three limbs do not.
- 8 U.S.C. § 1229b — Cancellation of removalIdentifies the discretionary relief a finding under this ground can foreclose, which sets the stakes of a family court stipulation.
- 8 C.F.R. § 1240.8 — Burdens of proof in removal proceedingsGoverns who must prove the domestic relationship and by what evidence, a question on which the courts of appeals have not agreed.
Premier Defense Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Immigration Consequences
Limiting What the Record of Conviction Will Show
A later adjudicator deciding what an offense involved may consult the charging instrument, a written plea agreement, the transcript of a plea colloquy, the judgment, and in a tried case the jury instructions and verdict form. Police reports, arrest affidavits and presentence narratives sit outside that set. A stipulated factual basis that incorporates an investigative document moves it inside, which is the single most common way a narrow plea record is lost.
Pleading Around the Crime of Violence Definition
The immigration statute borrows its crime of violence definition from the federal criminal code. The residual half of that definition, which asked whether an offense carried a substantial risk that force would be used, was held unconstitutionally vague as incorporated into the immigration provision. What survives requires an element of the use, attempted use or threatened use of physical force, read as force capable of causing physical pain or injury.
Working Alongside Immigration Counsel While the Case Is Live
Immigration counsel cannot say what a disposition does without the charging instrument, the precise offer, the proposed factual basis and the sentence arithmetic. Defense counsel cannot weigh an offer without the client's status, entry history, prior dispositions and any pending application. The transfer has to run both ways and has to close before the plea date, because a disposition already entered narrows every remaining option to a challenge.