Vikings Chris Cook Arrest Highlights the Implications of a Domestic Violence Offense For Non U.S. Citizens

Minnesota Vikings cornerback Chris Cook is facing felony and misdemeanor domestic violence charges that, if convicted, may lead to severe personal and professional repercussions.

Over the weekend, police were dispatched to Cook’s townhome. Neighbors complained of extended screaming and shouting coming from Cook’s home. Police, upon arrival, arrested Cook on two charges: felony domestic strangulation and fifth-degree domestic assault. The possible fallout of these charges is already huge for Cook, who is a United States Citizen.   But if he were not the potential consequences would be even more devastating.

If convicted of these charges, and depending on how the case ultimately plays out, if Cook were a non-citizen, ICE could attempt to categorize the convictions under a number of classifications under the Immigration and Nationality Act.   These potential classifications include a conviction for an aggravated felony crime of violence, a crime involving moral turpitude, or a crime of domestic violence.  This article will focus on the immigration classification of a “crime of domestic violence.”

Under INA §237(a)(2)(E) “Any alien who… is convicted of a crime of domestic violence… is deportable.” Courts throughout the country have held that a conviction of a domestic violence charge may lead directly to removal from the United States

A “crime of domestic violence” is defined according to the federal definition of “crime of violence” at 18 USC §16, which is also used in determining aggravated felony crimes of violence. That federal statute defines a crime of violence as:

(a) an offense that has as an element the 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 the person or property of another may be used in the course of committing the offense.

The Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004), provides significant guidance in interpreting crimes of violence under 18 USC §16, finding,

The critical aspect of [a] crime of violence is one involving the ‘use . . . of physical force against the person or property of another.’ . . . While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would ‘use . . . physical force against’ another when pushing him; however, we would not ordinarily say a person ‘use[s] . . . physical force’ against another by stumbling and falling into him.

What differentiates a crime of domestic violence from the aggravated felony “crime of violence” is that the former does not require the imposition of a sentence of one year or more and that the violent conduct must be initiated against a specific category of victim, including, but not limited to:

•    A current or former spouse;
•    A person with whom the individual shares a child in common;
•    A person with whom the individual is cohabitating or has cohabitated with as a spouse;
•    A person similarly situated to the spouse of the individual under the domestic or family violence laws of the jurisdiction where the offense occurs;
•    Any other 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

A non-citizen convicted of a crime of domestic violence on or after September 30, 1996 is deportable from the United States, however they are not per se inadmissible.  Therefore, an applicant for lawful permanent residency convicted of a crime of domestic violence would not be rendered statutorily ineligible for adjustment of status, which requires a showing of admissibility. But immigration adjudicators can deny a non-citizen’s application on discretionary grounds.  Furthermore, a crime of domestic violence will often also be classified as a crime involving moral turpitude, which does render a non-citizen inadmissible, unless the crime comes under the petty offense exception.

Looking at Chris Cooks’ criminal problems in the context of someone who is not a United States Citizen, only highlights why it is vital for non-citizens charged with a criminal offense to seek the counsel of attorneys who are familiar with both criminal and immigration law.

The attorneys at the New York Law Firm Cohen & Forman, LLP focus on the practice of criminal and immigration law and how the two overlap.  This overlapping often causes more severe penalties for non-citizens convicted of the same offenses as United States Citizens.  That is why it is imperative for attorneys representing non-citizens in a criminal matter to also be familiar with the potentially grave immigration consequences that individual could be facing.