Injunctions for protection, also commonly referred to as restraining orders, continue to serve as a potential pitfall for non – United States citizens. Injunctions are extremely easy to obtain and little evidence is required to obtain one. Often, a judge will issue an injunction based solely on the word of the person who filed for the injunction. That person may have ulterior motives to obtain the injunction, for example to gain leverage in a divorce proceeding or child custody proceeding. But once an injunction is obtained, any violation of that injunction could lead to deportation. A conviction is not even necessary. And even if you would otherwise be eligible for a form of relief where the judge could cancel your removal, a conviction would render you ineligible. A recent Board of Immigration Appeals decision has further solidified this position.
What is an Injunction?
An injunction is a court order commanding you to do things or to not do things. For example, a judge can order you to stay away from a specific person, to stay away from specific places, to go to batterer’s intervention program classes, and to adhere to many other court ordered conditions. A person can obtain an injunction by going to the courthouse and filling out a form alleging that they are in fear of future violence because of something the respondent has done or said in the past. An injunction can be granted based on nothing but that person’s own words. The court will typically issue a temporary injunction and set it for a hearing. At a hearing, the judge will listen to you, the petitioner, any witnesses and will look at evidence that the petitioner or respondent submits. The burden of proof is extremely low and if the judge feels that there is animosity between the two people will often err on the side of issuing the injunction. However, this can have a significant impact on any person, but particularly for a non-citizen.
What if I have an Injunction against me?
Injunctions can be temporary or they can be permanent. But in Florida, you can always file a motion to dismiss the injunction, specifically if the evidence supports the fact that the petitioner should no longer be in fear. If you are not a United States citizen, or even if you are, you should try to get the injunction dismissed as soon as possible. Any violation of an injunction, even with the consent of the petitioner, is a first degree misdemeanor, punishable by up to 1 year in jail in the State of Florida. For a non-United States citizen, a violation of an injunction or any court order relating to domestic violence, including bond conditions on a domestic battery case, is a basis for deportation. A conviction is not required. Also, if you were placed in deportation proceedings because you entered the United States without documentation, but you have been here for more than 10 years, a judge may be able to cancel your deportation through a form of relief called “cancellation of removal.” However, if you are convicted of a violation of injunction or convicted of any offense where you were ordered to do something or not to do something relating to protection against credible threats of violence, repeated harassment or bodily injury, then you would be ineligible for cancellation of removal and the immigration judge would have no choice but to deport you, unless you were eligible for some other form of relief.
How do you know this?
If you are like me and want to read the primary sources, please take a look at the latest BIA decision. The BIA (Board of Immigration Appeals) is the first appellate level above immigration judges. This means that you or the government can appeal an immigration judges ruling to the BIA. The BIA’s decisions are then binding on everyone, subject only to the next highest appellate level’s interpretation and to the Attorney General’s review. The next highest level above the BIA is the United States Circuit Court. Florida is in the Eleventh Circuit. The only court higher than the Eleventh Circuit is the Supreme Court of the United States. Most cases will stop at the BIA level. Unless, and until, an Eleventh Circuit decision comes out overruling the BIA, the BIA’s decision is the law. If you would like to read the BIA’s latest decision regarding Violations of Injunctions for Protection, click here to read Matter of Medina-Jimenz.
Jeremy Lasnetski is a partner at the Law Offices of Shorstein, Lasnetski, & Gihon. The firm focuses on criminal defense, immigration and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense. Mr. Lasnetski is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter and has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more. He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.