If you are dealing with a criminal charge or facing a protection from abuse petition, then you likely already understand how complicated the process and potential penalties can be. If you are not a U.S. citizen, then it is important to understand that the outcome of your criminal case or protection from abuse petition can have a significant effect on your immigration status and/or your visa status. Certain criminal convictions and protection from abuse outcomes can result in the loss of status and even deportation. If you have legal questions, then it is important that you speak to an experienced attorney.
If the above concerns are not enough for a protection from abuse defendant to mindful when trying to navigate the court process, additionally, some plaintiffs in a protection from abuse case who are non-U.S. citizens, but are working towards citizenship, will try to use the court system to circumvent the immigration process.
The "average" defendant in a protection from abuse case has a respectable chance of having to face false allegations, but a defendant who is being accused by a non-U.S. citizen seeking citizenship is even more likely to face false allegations, as accusers in some instances have ulterior motives in seeking protection from abuse, rather than because of a legitimate fear of harm.
Because of what is at stake and what is involved, an experienced attorney should be in your corner from as early as possible in the process. To help you better understand the path forward, please see below for more information.
What is a Protection from Abuse Order?
A protection from abuse (PFA) order is a court order meant to restrain the actions of an individual. A PFA can forbid an individual from having contact with an alleged victim of domestic or sexual assault. If a PFA is granted by a judge, then the person it is granted against can be arrested if they violate the judge's orders. PFAs are enforced statewide.
What are the Different Types of Protection from Abuse Orders?
There are two main types of PFAs in the state of Pennsylvania, temporary PFAs and final PFAs. They are described as follows:
Temporary Protection from Abuse
The first type of PFA that can be requested is a temporary protection from abuse order. To get a temporary order granted by a judge, the petitioner has to explain specifically why the court needs to protect them in this way from the defendant. There must be alleged physical or sexual abuse, and it must be written and explained in the petition. The court will expect details from any alleged incidents, such as the time, date, and location of any alleged misconduct.
Once a petition is filed with the court. The appropriate judge will call in the petitioner to conduct an ex parte hearing. An ex parte hearing is a hearing conducted with only one party in a case. In this case, the judge will only want to hear from the petitioner and will call in the petitioner to hear from him or her. The judge will not call nor consider any statements from the defendant named in the petition nor their attorney.
If the judge agrees that a temporary protection order is necessary to protect the petitioner, then the judge will order one to be put in place. The judge will also set a hearing to decide if the temporary order should become a final order within ten days. The temporary order is meant to be a placeholder until the judge conducts a full hearing with both sides.
Final Protection from Abuse
To order a final PFA, a judge must conduct a formal hearing. This hearing will include both sides and any attorneys. Both sides will be permitted to present their cases to the judge during this hearing. Both sides can admit evidence and call witnesses to testify during this hearing. For a petitioner to win a PFA hearing, he or she must prove by a preponderance of the evidence that some type of domestic or sexual violence occurred. At the end of the hearing, the judge will decide if the petitioner met his or her legal burden to prove that a final PFA is necessary. If the judge finds that a final PFA is necessary, then it can be in place for up to three years.
What Can a Final Protection of Abuse Order Restrain?
If someone gets a final PFA against you, then your actions and movement can be restrained in several ways, including:
- Being required to immediately stop any threatening, abusive, or harassing behavior against the petitioner
- Being required to leave any shared housing with the petitioner
- The petitioner can be awarded temporary custody be given temporary visitation rights over any children you have together
- Being required to turn over any guns or other deadly weapons to the court
- Being denied contact or attempted contact with anyone named in the order
The petitioner can also be reimbursed for costs that were incurred because of the alleged abuse. If a judge orders temporary custody, then a hearing for a full custody determination can be ordered.
Who Can Seek a Protection from Abuse Order?
Only those who have an intimate or family relationship with an individual can seek a PFA against him or her. These relationships are known as qualifying relationships, and they include:
- Current or former spouses
- Current or former boyfriend or girlfriend
- Current or former sexual partners
- Blood relatives that live in the same house
- Relatives by marriage that live in the same house
- Same-sex couples
- Parents and children
If a minor under the age of 18 wishes to petition for protection from abuse, then an adult must file it on their behalf. You cannot seek a PFA regarding strangers, friends, neighbors, roommates, co-workers, or classmates. If a PFA order is granted by the judge, the defendant will be located and served with the PFA by a county sheriff.
What Happens if Someone Violates a Protection from Abuse Order?
Once a final protection from abuse order is granted, then any violations are considered contempt of court. If a violation is alleged, then a hearing will be scheduled before the judge within ten days of the alleged violation. If the defendant is found in contempt, then they face up to six months in jail and up to a $1,000 fine. If there is an ongoing criminal case involving the same parties, then a violation of a PFA can result in a bond violation which can result in the revocation of bond, among other consequences.
What Happens if a Noncitizen Violates a Protection from Abuse Order?
If a noncitizen violates a PFA, then they can be arrested and sent to jail. If this happens, then it can hurt the noncitizen's chances of renewing a visa and will also appear on the noncitizen's moral character evaluation. When allegations of domestic or sexual assault are made in a PFA petition, then this can lay the groundwork for criminal charges as well. Any convictions or admissions of domestic or sexual assault by a noncitizen can result in deportation.
What Are the Different Immigration Statuses for Noncitizens?
Lawful Permanent Resident
When a noncitizen is granted status as a permanent resident in the U.S., it will either be as a lawful permanent resident (LPR) or a conditional lawful permanent resident (CLPR). The reason why an individual is a conditional permanent resident may be due to the length of time being married to a citizen spouse if that is how they obtained their status. A spouse of fewer than two years will be given CLPR before being granted a full LPR later.
Under federal law, there is a presumption that anyone who enters the U.S. is entering to live permanently. This, by definition, makes those who enter immigrants. There are several reasons why someone would enter the U.S., plan to stay for a period of time, but not permanently. This can include being an international student, a tourist, or a temporary international worker. Lawful non-immigrants are given various visas to establish their legal status.
Humanitarian Deferred Action
Deferred Action for Childhood Arrivals (DACA) applies to children (now adults) that entered the U.S. before their 16th birthday (pre-June 15, 2007) and have lived continuously in the United States since. DACA defers the deportations of individuals who qualify, giving them legal residence and the ability to legally work.
Temporary Protected Status (TPS) can be granted if an individual is currently in the United States while a dangerous situation such as war or an environmental disaster is ongoing in the individual's home country. The Department of Homeland Security will designate which countries are on the list for TPS, which will allow individuals from the listed countries legal residency and the ability to work while the TPS designation is in place.
U Visas and T Visas are available to those who are the victims of crime here in the United States. If an individual has been the victim of violence and cooperates with the prosecution of the alleged offender, then a U Visa may be granted. If an individual is the victim of human trafficking, then a T Visa may be granted.
Asylee or Refugee
Refugees are typically people who are outside of their home country and are unable or unwilling to return to their home countries because of the possibility of torture or violence due to political status, race, nationality, or political affiliation. Those given asylum or refugee status are eligible to apply for a green card after one year.
No Legal Status
This category includes people who have overstayed visas, violated the terms of their entry, entered with false documentation, or entered with no documentation at all. Once these individuals come into contact with the police, they are subject to deportation.
How a Protection from Abuse Order Can Be Used Against a Noncitizen
Some will, unfortunately, use PFAs as a sword against noncitizens. Since most noncitizens don't understand the U.S. court system very well, they may not understand the ramifications of a PFA and how it can affect them. The timelines of PFAs are very short, so many noncitizens are caught by surprise when they find out how quickly they must respond. A violation of a PFA by a noncitizen adds a layer of risk and consequence to the noncitizen since their visa or legal status to remain in the U.S. can be affected. Even though PFAs are considered civil and not criminal in nature, they can have the effects of criminal charges if certain admissions are made during any PFA hearing or other court proceeding.
What Benefits Can a Noncitizen Receive as the Victim of a PFA?
Immigration laws allow for the victim of a PFA to benefit from reporting a claim. A protection from abuse order may allow the accuser to receive the benefit of legal status and potential permanent residency here in the United States with a path towards citizenship. At the same time, the defendant of an accusation like this would be facing deportation, the cancellation of a visa, and/or potential criminal charges. Under a U Visa, the accuser can receive:
- Lawful status in the United States for up to four years
- Employment authorization
- Additional benefits for family members that qualify
- The potential to adjust legal status to become a lawful permanent resident (green card holder) after three years
The crime that is alleged must be a “qualifying criminal activity” for someone to be eligible to receive a U Visa. These crimes can be charged at the federal, state, or local level. The types of crimes that qualify include:
- Sexual abuse
- Kidnapping or holding someone hostage
- Domestic Violence
- False imprisonment
- Manslaughter or Murder
- Obstruction of justice
- Sexual assault
This is not a complete list of crimes that can be considered qualifying criminal activity for the purposes of a U Visa. Any similar crimes that involve criminal activity similar to what is listed above and can also be considered qualifying criminal activity for purposes of a U Visa petition. The attempt, solicitation, or conspiracy to commit any of these crimes can also be considered as qualifying criminal activity.
Since a PFA alleges instances of domestic violence and sexual assault or abuse, the potential of a U Visa to be used as a carrot for a PFA and potential prosecution will likely be available if the accuser is a noncitizen. A U Visa can be approved even if the defendant named in a PFA is never criminally charged or convicted. The fact that an accuser has filed a U Visa petition can be used at trial to show a motive to lie on the part of the defense.
There is a cap of 10,000 U Visa each year by the United States Citizenship and Immigration Services (USCIS). Once this cap is reached, then a waiting list is created for any other petitioners. Those on the waiting list will be granted deferred action or parole and become eligible to apply for employment authorization while they wait for their U Visa to eventually process. To qualify for a U Visa, an accuser must file a signed certification from law enforcement to support their U Visa petition. A signed certification from law enforcement notifies USCIS that the individual made an accusation and aided law enforcement to their satisfaction.
These benefits give accusers a lot to think about if they are planning to file a claim. If the accuser stops cooperating with law enforcement regarding any accusations, then they may refuse to sign the certification necessary to be approved. This threat can potentially allow for false accusations to continue as the accuser may stand to lose his or her legal status if they stop cooperating. If the person seeking a PFA is not a citizen and is a victim of human trafficking, then they can seek a T Visa. Human trafficking includes both sex trafficking and labor trafficking. If a T visa is granted to an individual, then it gives them the right to legally live and work in the United States for a period of four years. While a U Visa is much more likely in situations involving PFAs, the potential for a T Visa also exists.
What to Do If Facing a Protection from Abuse Petition
If you are facing a PFA petition, then it is important to get in touch with an experienced attorney immediately. If you are not a U.S. citizen, then it is imperative to understand how a PFA or a violation of a PFA can affect your immigration or visa status. You have a limited amount of time to be ready for a final PFA hearing. Most final PFA hearings are set within ten days of the initial temporary PFA being granted. If the judge grants a final PFA, then the orders in the PFA will be in place for up to three years. It is important to be proactive to put yourself in the best position to avoid a PFA because the system is designed to favor the petitioner. Get the best in legal help, starting with a call to the Lento Law Firm.
Contact the Lento Law Firm Today
If you have questions about immigration and visa issues related to protection from abuse orders, then it is important that you speak to an experienced attorney. It is important to know how a PFA can affect your legal status in the United States. The attorneys at the Lento Law Firm have the experience and knowledge that you need to help put you in the best position. To learn why the Lento Law Firm is the right choice, call us toll-free at 888-535-3686 or contact us online.