People's Law Guide
Jobs & Immigration Status Imperiled by Poorly Conducted Investigations
Pressures associated with unemployment, falling incomes, economic insecurity and the high number of homes being foreclosed upon are reflected in the number of reports of domestic violence being filed nationally and locally. Just as meteorologists know that raising and falling pressure readings from barometers coincide with the arrival of good and bad weather patterns, economists and social scientists have learned upward and downward trends for the reporting of domestic violence incidents reflect the strength or weakness of the Nation's economy. Calls to the National Domestic Violence Hotline have increased 13% from 2007 to 2009. Florida's domestic violence centers report a 40% spike in demand for their services from fall of 2008 through fall of 2009. In the past year, domestic violence centers in Broward County experienced a 43% increase in calls and those in Palm Beach County have risen by 27%. Researchers have long known the number of domestic violence reports lodged rises and falls with the condition of the Nation's economy. Police officers are under pressure to handle more cases during work shifts lasting no longer than before the surge started taking place, providing them with even less time to conduct investigations prior to making arrests.
Most persons arrested for committing intimate partner violence, a phrase interchangeable with domestic violence, are criminally charged with misdemeanor offenses, meaning the maximum term of incarceration cannot exceed one year. Though misdemeanor offenses are less serious than felony crimes which can impose prison terms well in excess of a year should serve no comfort, when realizing that unless these charges are dismissed prior to trial by the State Attorney's Office or later by a judge or jury, this criminal history can never be erased, sealed or expunged from one's records.
In addition for facing the wrath of the criminal justice system, persons pleading No-Contest or otherwise found guilty of causing domestic violence find it difficult to hold current jobs or find new ones, now that so many employers are conducting criminal background checks on current employees and those applying for work. For non-U.S. citizens, a case resolving with a determination of guilt can lead to deportations, even in misdemeanor cases. Arrests for domestic violence and DUI offenses can never be removed from one's Florida criminal record unless the charges are dismissed. Employers conducting criminal background checks detect permanent blemishes of even non-jail case outcomes while conducting criminal background inquiries and frequently fire current employees and reject job applicants who have pled No Contest or Guilty to accept non-jail plea bargains or were found guilty after a trial of these types of offenses. Employers, and their insurance carriers, fear those found guilty of domestic violence or DUI charges are more likely than others to cause problems at the workplace. That's why persons arrested for domestic violence or DUI crimes find it so difficult to hold current jobs or be hired for new work.
Findings of guilt in domestic violence cases, even when judges grant withholds of adjudication so that official convictions are not imposed, cause immigration-related concerns for non-citizens. Importantly, the list of crimes considered by Federal law to fall under the category of domestic violence offenses is long (such crimes include but are not necessarily limited to stalking, child neglect, child abuse and violations of protective orders). Even persons already granted permanent resident status can be subject to deportation, as can individuals with pending applications for permanent resident status and those wishing to become a U.S. citizen through naturalization. Criminal conduct is a key disqualifying factor under the character requirement for naturalization. It is widely agreed that a finding of guilt for a domestic violence charge will likely lead to a denial of citizenship when the offense occurred during the "statutory period (usually five years) and that the applicant's file will be referred for removal proceedings. Unless a pre-trial intervention or diversion program is offered to the person arrested on domestic violence charges, all other case outcomes short of full dismissal of the charges places one in peril for deportation, and under many circumstances a misdemeanor case can have the same effect. According to the Federal government's Immigration and Nationality Act, misdemeanor domestic violence charges resolved with any type of finding of guilt sometimes meet the criteria for deportation. Even if a criminal probationary period is successfully completed, a person who was subjected to a criminal probationary term for a deportation-qualifying misdemeanor offense or any felony charge of domestic violence becomes subject to deportation. A finding of someone has violated a protective order to avoid contact with or to remain distant from another also creates susceptibility to deportation. If and once a finding of guilty is administered by a judge, the Immigration and Nationality Act imposes mandatory detention if the domestic violence-related offense is punishable by at least 365 days of incarceration, even if the sentence actually imposed doesn't include jail time. Multiple convictions can also lead to deportation.
Though males are much more likely than females to be arrested on domestic violence charges, women are also taken into custody for these offenses. Though few law enforcement agencies publish detailed information about male victims, the prosecuting attorney of Clark County, Indiana has, and reports:
Of course, economic factors can and do generate frustration and hostility leading to the filing of false reports of domestic violence. Persons in the process of divorcing and those disputing child custody arrangements, property distribution, alimony payments or who acquires the family residence sometimes seek to utilize the criminal justice system to "gain leverage" during on-going legal conflicts. Of course, someone wishing to challenge allegations of domestic violence has the right to require a trial be held. Experienced criminal defense attorneys have a variety of tools to enhance the prospects of a not-guilty verdict being handed down, including but not limited to these:
Sometimes persons claiming to be victims of domestic violence transport themselves to police stations or to emergency rooms, knowing by lodging off-premises reports they are depriving law enforcement officers to conduct an even cursory "fresh" viewing of the alleged crime scene or to perform an on-the-scene assessment of the person who will be arrested. Other individuals alleging to have been hurt wait delay phoning police until sometime after spouses or domestic partners have left the residence, so they can fabricate physical evidence or prevent the presentation of the "other side of the story." Some persons tell police their injuries occurred in the recent incident though analysis by a physician would reveal the wound occurred days, weeks, or months earlier, or have all characteristics of being self-inflicted. When a report is filed away from the residence of the alleged victim, experienced defense attorneys realize this can sometimes be attributed to what was revealed in National Institute of Mental Health Report of females using use weapons such as baseball bats, boiling water and knives in 80% of the attacks they initiate, as compared to male reliance on weapons in 25% of these incidents. A report lodged even after a brief delay permits someone who utilized a weapon to discard or move the evidence, should an unlikely investigation occur. Further, injuries to each domestic partner occur in about half of all cases involving violence among intimate partners, researchers have found. The reporting domestic violence incident at a time one partner is absent always interferes with the ability of police officers to look for injuries on the person accused of being a sole-offender.
In addition to cash-strapped, over-burdened law enforcement agencies providing poor or infrequent training on how to conduct investigations to officers, other circumstances occur which also lead to inadequately conducted investigations, including:
Among the economic factors contributing to increased reporting of family violence are:
Source: U.S. Department of Justice, 2010
With more domestic violence cases to respond to than ever before, even conscientious and well-intentioned police officers find themselves with a heavier workloads which deprive them of sufficient time to conduct adequate investigations. Few police officers know to inquire as to which domestic partner has suffered the most recent firing, demotion or other work-related setback, though knowing this provides insight into who may have felt most stressed when violence broke-out.
One in 3.7 females have been pushed, slapped, choked or hit by a partner or spouse at sometime during their lives. For men, one in 16.67 have been threatened or hurt by a spouse or domestic partner. Though few law enforcement agencies publish information about male victims, the prosecuting attorney of Clark County, Indiana has, and reports:
That men are often victimized by intimate partner violence is not the only misconception held about these types of offenses. For decades, it was commonly believed that domestic violence occurred almost entirely in lower income families. Recently conducted research has uncovered domestic violence is far from rare in middle and upper income households. Among the reasons why earlier researchers failed to appreciate intimate partner violence occurs in households not considered to be "poor" or "poorly educated" is that persons impacted by intimate partner violence:
Of course, individual factors, including those relating to finances and immigration status, can and do generate frustration and hostility leading to the filing of false reports of domestic violence. Persons in the process of divorcing and those disputing child custody arrangements, property distribution or alimony payments sometimes seek to utilize the criminal justice system to "gain leverage" during on-going legal conflicts.
It's also possible to gain advantages to one's current immigration status by making a false claim of having been abused by domestic violence. By filing a report of domestic violence, a non-citizen married to a U.S. citizen ceases to depend on that relationship to lawfully stay in the United States. In fact, the so-called victim can apply for residency in a confidential statement without the government informing their spouse such action is taking place. By "steering" a failing marriage to an abrupt end by claiming to have been harmed in a domestic violence attack, one becomes eligible to legal permanent residency not otherwise obtainable.
Other non-citizens have been known to bring on-going deportation proceedings against them to a halt by claiming they were abused by spouses. By making use of protections available under the Violence Against Women Act to obtain cancellation of existing removal efforts, the person lodging a complaint of domestic violence need only demonstrate having resided in the country for three years, having maintained good moral character, and that she or her child would suffer extreme hardship if returned to her country of origin.
Some non-married persons are among those manipulating the Nation's criminal and immigration laws by filing for a U-Visa or a U-Non Immigrant Status Visa by first lodging a domestic violence complaint to a police department and promising to assist in the investigation and prosecution of the alleged perpetrator. Since few police officers inquire about immigration status while speaking to persons they suspect to be victims and perpetrators of intimate partner violence, possible immigration-related motives for initiating the criminal charge isn't uncovered. This maneuver enables aliens to circumvent "conditional permanent resident status" which is typically granted only after a non-citizen spouse remains married to a U.S. Citizen for two years.
Someone arrested for a domestic violence charge has the right to a court trial. Experienced criminal defense attorneys have a variety of tools to enhance the prospects of a pre-trial case dismissal or a not-guilty verdict being handed down, including but not limited to these:
The phrase "domestic violence" includes any of the following types of crimes when are alleged to have been committed against another member within one's family or household:
Any type person listed below is permitted to file charges alleging someone committed a domestic violence offense:
Even if the person who files a domestic violence charge later decides she or he doesn't wish for prosecution to continue, or refuses to cooperate as a complaining witness, police officers and prosecutors are permitted to proceed forward with the criminal case.