Domestic Violence and Deportation Risk in Massachusetts

A Massachusetts domestic violence case can make a noncitizen deportable even without a guilty finding or jail sentence. Federal immigration law may treat a continuance without a finding as a conviction. A qualifying protection-order finding can also support deportability without a criminal conviction.

The federal immigration result depends on whether the Massachusetts disposition counts as a conviction for immigration purposes, whether the offense of conviction creates a ground of deportability, and whether a court determined that the person violated a protection order. Federal immigration authorities may review the Massachusetts record to determine whether a conviction-based ground or a protection-order ground of deportability applies.

This page explains how the federal immigration result can depend on a Massachusetts charge, disposition, sentence, and protection-order finding. The parent page collects the broader immigration consequences of Massachusetts criminal charges. A separate page explains the general rules for criminal convictions involving immigrants and visa holders.

Scope of Representation

Serpa Law Office represents noncitizen defendants in Massachusetts criminal proceedings. Attorney Serpa defends the Massachusetts criminal case and coordinates with immigration counsel when a proposed charge, plea, finding, or sentence may affect the client's immigration status. He does not appear in immigration court, before the Board of Immigration Appeals, or in removal proceedings. A client who needs representation in removal proceedings or before USCIS should retain immigration counsel.

In a domestic case a conviction or a continuance without a finding is the obvious risk to an immigration petition or application. An immigration lawyer should advise the client on the petition, the application, and the interview. Disclosure of the offense, or questions about the conduct alleged in an affidavit for a 209A restraining order (abuse prevention order) or a police report, can also cause problems on an application or at an interview. These problems can arise even where the criminal case was dismissed.

A dismissal before an admission or guilty finding may prevent a conviction-based immigration ground from arising. The page on Massachusetts criminal dismissal rules explains who may dismiss a case, on what grounds, and at what stage. A noncitizen who is also a college or university student or a licensed professional may face separate effects on immigration status, enrollment, and professional licensure.

District Courts and Boston Municipal Court divisions across Eastern Massachusetts regularly hear domestic violence cases. The charges, admissions, findings, and orders that enter the record depend on the sequence of Massachusetts domestic violence proceedings. Immigration authorities may later review that record.

Which Massachusetts Dispositions Count as Convictions

Federal immigration law uses its own definition of a conviction. Under 8 U.S.C. § 1101(a)(48)(A), a conviction is a formal judgment of guilt entered by a court. For a disposition in which the court withheld the adjudication of guilt, a conviction still exists if two things happened. First, the person pleaded guilty or nolo contendere, admitted sufficient facts, or was found guilty. Second, the judge ordered some form of punishment, penalty, or restraint on liberty.

A continuance without a finding is a conviction under the federal definition. The defendant's admission to sufficient facts and the probation the court imposes satisfy both parts of the federal definition. Immigration authorities apply the federal definition of a conviction even though the Massachusetts court does not enter a guilty finding. Matter of Punu, 22 I&N Dec. 224 (BIA 1998). A later dismissal after successful probation does not change the CWOF's treatment as a federal immigration conviction. The separate page on collateral consequences of a continuance without a finding explains its other effects.

Pretrial probation is not a conviction. Under M.G.L. c. 276, § 87 the defendant admits nothing and the court makes no finding, so neither part of the federal definition is met.

A suspended sentence counts as a sentence. Under 8 U.S.C. § 1101(a)(48)(B), a term of imprisonment includes the confinement the court ordered whether or not the court suspended it. A suspended term of one year in the house of correction is a one-year sentence for immigration purposes.

After determining that the disposition counts as a conviction, immigration counsel must identify which deportation provision, if any, applies to the offense.

Different rules apply to deportability and inadmissibility. The deportation provisions on this page apply to a person already admitted to the United States. Inadmissibility rules apply to a person seeking admission, applying to adjust status, or returning from travel abroad. A Massachusetts domestic violence disposition can affect both questions. The page on crimes involving moral turpitude and aggravated felonies explains those classifications separately.

Deportable for a Crime of Domestic Violence: 8 U.S.C. § 1227(a)(2)(E)(i)

Clause (i) makes a noncitizen deportable for a conviction, entered any time after admission, of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.

A crime of domestic violence has two parts. First, the offense must be a crime of violence as 18 U.S.C. § 16 defines it. Second, the victim must have a qualifying relationship with the defendant. A current or former spouse, a person with whom the defendant shares a child, and a person who cohabits or cohabited with the defendant as a spouse each have a qualifying relationship.

A person similarly situated to a spouse under the domestic or family violence laws of the jurisdiction, and any other person protected under those laws, also have a qualifying relationship. The government must establish both parts. Matter of Dang, 28 I&N Dec. 541 (BIA 2022).

Two Supreme Court holdings define the force requirement.

In Sessions v. Dimaya, 584 U.S. 148 (2018), the Supreme Court held that the residual clause of § 16(b) was unconstitutionally vague. Section 16(a) therefore supplies the remaining definition. Section 16(a) requires the use, attempted use, or threatened use of physical force against another person or against property as an element of the offense.

In Johnson v. United States, 559 U.S. 133, 140 (2010), the Supreme Court held that physical force in this context means "violent force, that is, force capable of causing physical pain or injury to another person." Massachusetts battery also includes conduct that does not require violent force. The question whether the conviction falls within § 16(a) can therefore depend on the specific battery theory identified by the Massachusetts record.

The required mental state presents a separate limit. Under Borden v. United States, 593 U.S. 420 (2021), an offense meets § 16(a) only where the mental state is at least knowing. Recklessness is not enough.

Massachusetts Offenses Under the Federal Definitions

Assault and battery on a family or household member, M.G.L. c. 265, § 13M

Section 13M defines the required domestic relationship. Section 13M defines a family or household member as a person who is or was married to the defendant or who has a child in common with the defendant. The definition also includes a person who is or has been in a substantive dating or engagement relationship with the defendant.

The federal crime-of-violence question depends on the form of assault and battery. Massachusetts recognizes three forms.

• Harmful battery is a touching "with such violence that bodily harm is likely to result." Commonwealth v. Burke, 390 Mass. 480, 482 (1983).
• Offensive battery is an intentional nonconsensual touching, however slight. Commonwealth v. Vieira, 483 Mass. 417 (2019).
• Reckless battery is a wilful, wanton and reckless act causing personal injury. Commonwealth v. Eberhart, 461 Mass. 809, 818 (2012).

A § 13M conviction based on harmful battery qualifies as a crime of domestic violence. Harmful battery has the use of violent force as an element. Section 16(a) requires that element. United States v. Holloway, 630 F.3d 252 (1st Cir. 2011). A conviction for harmful battery against a family or household member is a deportable offense under § 1227(a)(2)(E)(i).

A § 13M conviction based on offensive battery does not satisfy § 16(a). Offensive battery requires no violent force. United States v. Faust, 853 F.3d 39 (1st Cir. 2017).

A § 13M conviction based on reckless battery does not satisfy § 16(a). Recklessness is not enough. Borden v. United States, 593 U.S. 420 (2021).

A § 13M assault conviction satisfies § 16(a) only when the offense requires attempted or threatened violent force.

Immigration courts review the Massachusetts court record to identify which statutory form of battery supported the conviction and whether that form satisfies the federal ground at issue. They read the charging instrument, plea colloquy, jury instructions and verdict, and judgment. The immigration court applies the least-acts presumption if those documents do not identify a qualifying form. Peralta Sauceda v. Lynch, 819 F.3d 526 (1st Cir. 2016).

Strangulation or suffocation, M.G.L. c. 265, § 15D

The offense defined by § 15D qualifies as a crime of violence. Section 15D requires intentional interference with normal breathing or circulation of blood by applying substantial pressure on the throat or neck, or by blocking the nose or mouth. Applying substantial pressure on the throat or neck, or blocking the nose or mouth, is force capable of causing physical pain or injury.

Section 15D contains no domestic-relationship element, so the government must establish the required relationship separately.

A violation of § 15D is a felony punishable by up to five years in state prison or up to two and one half years in a house of correction, a fine of up to $5,000, or both. A sentence of one year or more, including a suspended sentence, also makes the offense an aggravated felony crime of violence under 8 U.S.C. § 1101(a)(43)(F).

Section 15D(c) raises the maximum to ten years where the strangulation or suffocation causes serious bodily injury, or where the defendant knew or had reason to know that the person was pregnant. The maximum is also ten years where the defendant has a prior conviction under the section, or where the defendant knew of an outstanding vacate, restraining, or no contact order. Those sentencing enhancements increase the potential sentence, but the aggravated-felony classification still depends on whether the court imposes or suspends a term of at least one year.

Assault and battery with a dangerous weapon, M.G.L. c. 265, § 15A

Massachusetts recognizes intentional and reckless forms of assault and battery with a dangerous weapon.

The intentional kind is a crime of violence. The offense requires a weapon capable of causing serious bodily injury or death, so even a slight touching with one is a use of violent force. United States v. Tavares, 843 F.3d 1, 13 (1st Cir. 2016); United States v. Whindleton, 797 F.3d 105, 115 (1st Cir. 2015).

The reckless kind is not a crime of violence. Borden v. United States, 593 U.S. 420 (2021).

A conviction for the intentional form of assault and battery with a dangerous weapon is also an aggravated felony crime of violence under § 1101(a)(43)(F) if the court imposes or suspends a sentence of one year or more. The page on assault with a dangerous weapon and assault and battery with a dangerous weapon explains both Massachusetts forms.

Simple assault and battery, M.G.L. c. 265, § 13A

Section 13A covers the same three forms of assault and battery without the relationship element. A § 13A conviction based on harmful battery satisfies § 16(a). A conviction based on offensive or reckless battery does not satisfy § 16(a).

Reducing a charge from Section 13M to Section 13A removes the domestic relationship from the elements of the Massachusetts offense. The reduction does not necessarily prevent the government from proving the domestic relationship in immigration court. The Board of Immigration Appeals and several federal courts of appeals allow the government to establish the relationship through evidence identifying the defendant and alleged victim, even when the statute of conviction contains no relationship element. Immigration counsel should determine how the federal circuit governing the removal case addresses proof of the domestic relationship.

Intimidation of a witness, M.G.L. c. 268, § 13B

A § 13B conviction does not qualify as a crime of violence under § 16(a). Section 13B covers conduct that does not require physical force, including gifts, offers, promises, misleading conduct, intimidation, harassment, and conduct committed with reckless disregard. The government cannot use allegations in a police report to add a force element that the statute does not contain.

Stalking and criminal harassment, M.G.L. c. 265, §§ 43 and 43A

Clause (i) lists stalking as a deportable offense in its own right, separate from the crime of violence question. Federal law defines stalking as conduct engaged in on more than one occasion, directed at a specific individual, with the intent to place that individual or a member of the immediate family in fear of bodily injury or death. Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018).

The elements of Massachusetts stalking correspond to the federal definition. Section 43 requires a knowing pattern of conduct or series of acts over a period of time directed at a specific person. Section 43 also requires a threat made with the intent to place that person in imminent fear of death or bodily injury. No published decision has addressed whether Massachusetts stalking matches the federal definition. The elements of § 43 nevertheless correspond to each part of the federal definition.

Criminal harassment under Section 43A does not meet the federal definition of stalking. Section 43A requires the same pattern of conduct. The harm that Section 43A requires is serious alarm and substantial emotional distress. The federal definition requires the intent to place the person in fear of bodily injury or death, but Section 43A requires neither a threat nor that fear. A disposition under Section 43 rather than Section 43A can therefore produce a different deportation result.

Deportable for Violating a Protection Order: 8 U.S.C. § 1227(a)(2)(E)(ii)

Clause (ii) does not require a domestic violence conviction. Clause (ii) applies when a court makes the required determination about violation of a protection order.

Clause (ii) applies when a court issues a protection order against a noncitizen and later determines that the person violated the portion protecting against credible threats of violence, repeated harassment, or bodily injury. A protection order for this purpose is any injunction issued to prevent violent or threatening acts of domestic violence, including a temporary or final order issued by a civil or criminal court.

A conviction for violating a 209A restraining order under M.G.L. c. 209A, § 7 or a civil contempt finding may supply the required court determination. The finding must concern the portion of the order protecting against credible threats of violence, repeated harassment, or bodily injury. A civil court can make that finding without a criminal prosecution.

Under Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), the immigration judge examines the state-court record rather than relying only on the elements of an underlying offense. The record must show that the state court found conduct violating the order's protective portion and that the order addressed violent or threatening acts of domestic violence.

Clause (ii) applies independently of a companion assault prosecution. An acquittal on assault and battery on a family or household member therefore does not eliminate deportability if the court separately makes the qualifying finding about a violation of the order's protective portion.

The clause covers only the portion of an order protecting against credible threats of violence, repeated harassment, or bodily injury. The page on State and Federal Records of Massachusetts 209A Restraining Orders and 258E Harassment Prevention Orders explains where civil findings about these orders are recorded and who may access them.

A violation of a 258E harassment prevention order comes within clause (ii) when the court issued the order to prevent violent or threatening acts of domestic violence. Massachusetts courts may also issue 258E harassment prevention orders involving strangers, neighbors, and coworkers. An order issued for a purpose other than preventing domestic violence does not satisfy the federal protection-order definition.

The Federal Firearms Question Is Separate

Section 922(g)(9) prohibits firearm possession by a person convicted of a misdemeanor crime of domestic violence. Section 921(a)(33) defines a misdemeanor crime of domestic violence differently from the way federal immigration law defines a crime of domestic violence.

Under federal firearms law, the question whether a disposition counts as a conviction also depends on the law of the jurisdiction where the proceeding occurred. Massachusetts does not treat a continuance without a finding as a conviction, so § 922(g)(9) generally does not apply to a Massachusetts CWOF alone, even though federal immigration law treats the same disposition as a conviction. A CWOF can still have separate Massachusetts firearms and licensing consequences.

For a qualifying conviction, § 921(a)(33) also requires that the person had counsel or knowingly and intelligently waived counsel. A person who had a right to a jury trial must have had the case tried by a jury or must have knowingly and intelligently waived that right. An expungement, set-aside, pardon, or restoration of civil rights generally removes the conviction from the federal definition unless the order or restoration expressly continues to prohibit firearm possession.

For a person with one qualifying conviction against a dating partner, § 922(g)(9) no longer disqualifies the person five years after the later of the conviction or the end of a custodial or supervisory sentence.

The person must have no other firearms prohibition and no later conviction for a misdemeanor that has as an element the use or attempted use of physical force or the threatened use of a deadly weapon.

The five-year rule does not apply where the person is a current or former spouse, parent, or guardian of the victim or shares a child with the victim. The five-year rule also does not apply where the person cohabits or has cohabited with the victim as a spouse, parent, or guardian, or is similarly situated to a spouse, parent, or guardian of the victim.

Federal immigration law and federal firearms law use different definitions of conviction. Counsel must apply each definition separately before the client accepts a disposition. The dedicated page explains the firearms consequences of a Massachusetts domestic violence charge in full. A noncitizen whose employment or professional license depends on firearm possession may need both questions resolved before accepting a disposition.

The Waiver for Victims of Domestic Violence: 8 U.S.C. § 1227(a)(7)

Criminal and immigration counsel should identify a potential statutory waiver at the beginning of the case.

Under § 1227(a)(7)(A), the Attorney General may waive clause (i) and clause (ii) for a noncitizen who has been battered or subjected to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship. The waiver requires one of three determinations. The first is that the person acted in self-defense. The second is that the person was found to have violated an order intended to protect the person.

The third is that the crime caused no serious bodily injury and was connected to the person having been battered or subjected to extreme cruelty. Under § 1227(a)(7)(B), the Attorney General may consider any credible evidence relevant to the application and decide the weight to give that evidence.

Criminal defense counsel should preserve evidence that may support the waiver and coordinate with immigration counsel about what should enter the Massachusetts court record. A defendant who was assaulted and charged after a cross complaint or dual arrest should document that history while the evidence remains available. The self-defense and mutual combat questions that arise in these cases, and the general law of self-defense in Massachusetts, can affect both the criminal defense and a later waiver request.

What the Massachusetts Record Must Show

The plea, findings, and sentence create the record that federal immigration authorities may later review. The federal classification can depend on six parts of that record.

1. The offense of conviction. Under federal law, the classification depends on the elements of the offense reflected in the disposition. Defense counsel should identify the specific statutory section and theory before resolving the case.
2. The plea colloquy. For a statute that contains more than one offense, the defendant's admissions and the court's findings may identify which statutory theory supports the disposition.
3. The sentence. For an offense that qualifies as a crime of violence, an imposed or suspended sentence of at least one year can create an aggravated-felony consequence. Counsel should address sentence length before the disposition.
4. The relationship. The government may seek to prove the required domestic relationship through other permissible record evidence when the offense contains no relationship element.
5. The protection-order finding. For a violation of a 209A restraining order or a 258E harassment prevention order, the question whether clause (ii) applies depends on the exact provision the court found violated and the wording of the finding.
6. Counsel and jury rights. Valid counsel and jury waivers are necessary under 18 U.S.C. § 921(a)(33)(B)(i), but those waivers do not turn a Massachusetts CWOF into a conviction. Section 922(g)(9) generally does not apply to a Massachusetts CWOF.

Defense Strategy for Noncitizen Defendants

Clerk-magistrate hearing. A clerk-magistrate hearing allows counsel to oppose the complaint before arraignment in a domestic violence case that begins by summons rather than warrantless arrest. No complaint issues, no arraignment occurs, and no conviction or CORI entry results if the clerk-magistrate denies the application. Most domestic violence cases begin with warrantless arrests, so this procedure is available in a minority of them.

Pretrial probation. Pretrial probation under M.G.L. c. 276, § 87 does not satisfy the federal immigration definition of a conviction when the defendant makes no plea or admission and the court makes no finding. Counsel should consider pretrial probation as an alternative to a continuance without a finding when the Commonwealth will agree to a resolution short of trial.

Trial. A not-guilty verdict prevents conviction-based immigration consequences from that charge. The prosecution may lack the admissible evidence needed to proceed at trial if a spouse invokes the marital privilege or if the Commonwealth cannot admit a necessary out-of-court statement under the excited utterance exception. The page on how Massachusetts domestic violence cases are prosecuted and resolved explains those evidentiary questions.

Analysis before a proposed disposition. Counsel must compare the elements of the specific Massachusetts offense with each potentially applicable deportation provision before the client accepts a plea, continuance without a finding, or reduced charge. Criminal defense counsel and immigration counsel should complete that comparison before the disposition hearing.

Post-conviction motion. A motion to withdraw the plea may be available to a noncitizen who accepted a continuance without a finding or a guilty plea without being advised of the immigration consequences. The motion is brought under Mass. R. Crim. P. 30(b) and Padilla v. Kentucky, 559 U.S. 356 (2010). The page on Commonwealth v. Chhieng explains the Supreme Judicial Court's current treatment of defective immigration warnings and motions to reopen Massachusetts dispositions.

Plea Warnings Under G.L. c. 278, § 29D and Motions to Vacate

Before accepting a guilty plea, a plea of nolo contendere, or an admission to sufficient facts, a Massachusetts judge must give the defendant an immigration warning. The judge must advise the defendant that the plea may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization. G.L. c. 278, § 29D. The warning applies to a continuance without a finding because that disposition is based on an admission to sufficient facts. The judge must give the warning at every plea colloquy.

A defendant who did not receive the warning can later move to vacate the judgment by showing that the plea may have or has had any of the immigration consequences listed in the warning. On that showing, the judge must vacate the judgment and permit the defendant to withdraw the plea or admission. Absent an official record or a contemporaneous written record in the court file showing that the warning was given, the defendant is presumed not to have received the warning. A warning given at a different plea colloquy does not satisfy the statute.

A § 29D motion is separate from a motion under Mass. R. Crim. P. 30(b) and Padilla v. Kentucky, which concerns defense counsel’s own duty to advise the client. A noncitizen who accepted a domestic violence disposition should have counsel review the docket and the plea recording for the § 29D warning before removal proceedings begin.

Coordinating the Criminal and Immigration Cases

Federal immigration consequences depend on the federal definition of conviction, the elements of the Massachusetts offense, the length of any imposed or suspended sentence, and any court finding concerning a protection-order violation. Counsel must therefore evaluate the proposed Massachusetts charge, plea, finding, and sentence under the applicable federal rules before resolving the criminal case. Attorney Serpa handles the Massachusetts criminal case and coordinates with the client's immigration counsel when the proceedings overlap.

Frequently Asked Questions About Domestic Violence Charges and Deportation in Massachusetts

Related Serpa Law Office Resources

• Immigration Consequences of Massachusetts Criminal Charges
• Boston Domestic Violence Defense Lawyer
• CWOF, Pretrial Probation, and Diversion in Massachusetts
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders)
• Firearms Consequences of a Massachusetts Domestic Violence Charge
• Motions for a New Trial Under Padilla v. Kentucky
• DCF 51A Investigations After a Massachusetts Domestic Arrest
• The Intimate Partner Abuse Education Program (IPAEP)

Contact Serpa Law Office or call 617.936.0201 for a confidential consultation about the immigration consequences of a Massachusetts domestic violence charge.