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Virginia Assault and Battery- Immigration Consequences for the Non-Citizen

Virginia Assault and Battery- Immigration Consequences for the Non-Citizen

Posted by: ScottMond Law Firm
January 25, 2011
Topic: Criminal Law & Immigration

The purpose of this article is to discuss the often confusing topic of whether an assault and battery in the State of Virginia is an aggravated felony prohibiting a U.S. non-citizen who is convicted of such a crime from applying for many forms of relief if placed in removal. Without relief, a non-citizen client will be removed (deported) from the United States.

If you or your loved one are currently charged with assault and battery as a non-citizen of the United States, it is important to discuss with your immigration attorney how to have your case classed as a non-aggravated felon so you may have the needed relief and not be removed.

The terms categorical, and modified categorical approach sounds akin to another language, and it is. It is the language of immigration removal courts and attorneys when determining the overall immigration consequences of a criminal act by a non-citizen. Many changes have taken place with the law, in which it is not the purpose of this article to discuss. What is important to note, however, is that these terms determine how far ICE government attorneys, or the defense removal attorney can "dig" into the prior criminal record to determine if a "crime of violence" or "aggravated felony" has occurred making a non-citizen removable from the United States.

The next important item is to determine who has the burden of proof. Who ever has the burden of proof has to prove by digging into the criminal records that the crime was not an aggravated felony. So for instance, if it is the government's burden of proof to show that a non-citizen's crime is an aggravated felony, they can start digging into police reports, notes, colloquy, pre-trial notes, sentencing reports and any other item that may be in the court file if it is not clear on the face of the disposition of the case that a crime of violence has not occurred. In the alternative, if it is the burden of the non-citizen to show that an aggravated felony has not occurred, the attorney for the non-citizen must dig into those same records to sustain the burden.

What does this mean? It is critical to find experienced immigration counsel that understands the importance of researching critical case law in various circuits to avoid devastating consequences with the current above standard to determine whether a non-citizen will be removed in the State of Virginia. The posture of the case is critical as to how the case is litigated. Likewise, the non-citizen in removal should feel empowered to go and pull a copy of their entire court file from the court and sit down and discuss it with his or her attorney of choice. If a non-citizen client is detained, it is important for them to have 3rd party who will pull the ENTIRE criminal file, not just the disposition. Of course, immigration counsel can pull the file as well, but ask for a full copy of the criminal file and review it with your immigration counsel.

If you have questions, or would like to speak with one of our attorneys, we invite you to contact us at [email protected] for a fast response, or call us at one of our offices listed on the first page of

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