How Can a Restraining Order Affect My Status Under DACA?

If you aren't a U.S. citizen yet, you already know that inadvertently running afoul of the law can be a stressful endeavor. If you're worried about your immigration status, even a small criminal matter or arrest can complicate things for your future. But what happens if someone petitions a New Jersey court for a restraining order against you? Can that affect your immigration status? This article will discuss whether a restraining order can affect your status under Deferred Action for Childhood Arrivals, otherwise known as DACA.

Deferred Action for Childhood Arrivals

Starting in 2012, some people who came to the United States as children became eligible for deferred action on removal from the U.S. based on their immigration status for two years, subject to renewal. Known as Deferred Action for Childhood Arrivals or DACA, if you qualify, you may also be eligible to work in the U.S. However, your DACA status can be affected by drug crimes, theft, sex crimes, or even a DUI. Determining whether a restraining order will affect your DACA status can be a nuanced legal matter. But your immigration status is a serious matter, and you will need experienced legal guidance as soon as possible.

What Is a Restraining Order?

Because domestic violence is a serious issue in New Jersey, our legislature created options to protect victims of family violence. Under the 1982 Prevention of Domestic Violence Act, victims of domestic violence and related crimes can obtain a court order to protect themselves from an abuser. See N.J. Stat. §§ 2C:25-17 - 25-35. This civil restraining order can prohibit someone from approaching or contacting the petitioner for a set period or permanently.

A domestic violence restraining order against you can also:

  • Order temporary custody and visitation of your children
  • Order you to provide financial support, pay mortgages or rent, or pay other financial obligations
  • Prohibiting you from contacting the petitioner, their family, or their place of work
  • Prohibit you from owning, buying, or possessing firearms
  • Order you into counseling or therapy

Restraining Orders in New Jersey

There are three basic types of restraining orders in New Jersey: temporary restraining orders (TRO), final restraining orders (FRO), and sexual assault restraining orders (SARO).

1. Domestic Violence Temporary Restraining Orders

When someone petitions for a restraining order, they may request a TRO immediately. To determine whether to issue a TRO, the judge will hold an “ex parte” hearing, which means that only the petitioner is present. The court won't notify you of the ex parte hearing, and the judge will decide based only on the information provided by the petitioner. A judge will typically grant a TRO if necessary to protect the petitioner's life, health, or well-being. The temporary order remains in place until the hearing for a final restraining order, typically within ten days. See N.J.S.A. §§ 2C:25-28(a),(f); 2C:25-29(a).

2. Domestic Violence Final Restraining Orders

The court will usually hold a hearing to determine whether to issue a final restraining order within ten days. At the hearing, you will both have the chance to tell your side of the story. Both parties may present evidence and witnesses, and your attorney can also cross-examine the petitioner's witnesses. If the judge decides to issue a FRO, it will remain in place unless one of the parties asks the court to rescind or modify the order. See N.J.S.A. § 2C:25-29(d). The FRO can order you to:

  • Refraining from contacting or approaching the petitioner
  • Provide financial support to the petitioner and shared children
  • Continue paying financial obligations such as rent or a mortgage
  • Surrender any weapons you own
  • Only have limited or supervised child visitation

3. Sexual Assault Restraining Order

New Jersey law also allows victims of sexual assault to request a restraining order preventing contact or future communication from their attackers. Under the New Jersey Sexual Assault Survivor Protection Act (SASPA), courts may issue civil protective orders to protect a victim of sexual violence from their assaulter. A judge can issue a TRO under SASPA if they find it necessary to protect the safety and well-being of the victim. The judge must also find that the victim was a victim of non-consensual sexual contact, sexual penetration, lewdness, or an attempt to do so, even if a court hasn't yet convicted the defendant. See N.J.S.A. §§ 2C:14-13, et seq. SASPA final order hearings also typically take place within ten days after the issuance of the TRO.

What Is the Restraining Order Process?

If someone requests a restraining order against you, the process will typically be about the same across the state of New Jersey.

1. TRO Hearing

When the petitioner fills out the restraining order application, they can immediately request a temporary restraining order from a court. The court will hold an ex parte hearing to decide whether to issue the TRO. The court won't notify you of this hearing, and you won't have the right to attend.

2. Service of TRO and FRO Hearing Date

After the court issues a TRO, the police will serve you with a copy of the temporary order and the date, time, and location for the final hearing. If you share a home with the petitioner, the police may also order you to leave the home, even if you pay the rent or mortgage or the home is in your name. They may also confiscate any firearms you possess.

3. FRO hearing

You have the right to appear at the final hearing for the restraining order, and you should attend. If you fail to appear, the court may issue an order against you without hearing your side of the story. You have the right to cross-examine witnesses and introduce your own evidence and witnesses at the hearing.

4. Issuance of a FRO

To enter a domestic violence FRO, the judge should find that:

  • You and the petitioner have a qualified domestic relationship, meaning that you are members of the same household, have a current or former marriage, a dating relationship, or you and the petitioner have one or more children together.
  • You committed an act of domestic violence against the petitioner. In New Jersey, acts of domestic violence don't simply include assault. Domestic violence can include:
    • Stalking
    • Assault
    • Harassment
    • Terroristic threats
    • Criminal restraint
    • Sexual assault
    • False imprisonment
    • Kidnapping
    • Burglary
    • Criminal mischief
    • Criminal sexual contact
    • Lewdness
    • Criminal trespass
    • Robbery
    • Criminal coercion
    • Cyber harassment
    • Contempt of a domestic violence restraining order
    • Any other crime that involves the risk of death or serious bodily injury

The judge must also find an immediate need for a FRO to prevent further acts of domestic violence.

Before entering a sexual assault FRO, the judge must make a specific finding that you committed an act of “non-consensual sexual contact, sexual penetration, lewdness, or an attempt of such conduct,” or you must stipulate that you committed one of these acts.

A FRO is typically much more detailed than a TRO. A FRO can include provisions that:

  • Prevent you from contacting or harassing the petitioner
  • Provide temporary custody of your children
  • Order you to provide financial support, including rent, mortgages, and other financial obligations
  • Prevent you from owning or possessing firearms
  • Order you to attend counseling or therapy

If the court issues a FRO against you, you may also need to consider how it can affect your status under DACA.

Restraining Orders and Deferred Action for Childhood Arrivals Status

In New Jersey, a restraining order is a civil court order and doesn't involve the criminal court process. As a result, a restraining order against you won't result in a criminal record. However, a restraining order can be more complicated for those with DACA status. During the restraining order process, the petitioner must show the court that an act of domestic violence occurred. If the court grants an order against you, it may affect your DACA status. It is rare for a restraining order or allegation of domestic violence or sexual assault to result in deportation, but it can happen.

While a restraining order against you is unlikely to affect your DACA status, violating a restraining order is another matter entirely. In New Jersey, violating a temporary or a final restraining order is a crime. The police can charge you with criminal contempt of a court order. See N.J.S.A. § 2C:29-9. If convicted of violating a restraining order, you could face jail time and have a criminal record. See N.J.S.A. § 2C:25-31. If you violate a restraining order a second time and a court convicts you, you will receive a mandatory 30-day sentence in jail. See N.J.S.A. § 2C:25-30.

In the U.S., you could face deportation or removal from the country for any criminal conviction for a crime against another person or a crime of “moral turpitude.” This removal can also prevent you from reentering the U.S. in the future. U.S. immigration law considers domestic violence a crime of “moral turpitude.”

A TRO or FRO is a civil offense in New Jersey, not a criminal conviction. However, if you violate that restraining order, it is a criminal offense and can affect your DACA and immigration status. Under the Immigration and Nationality Act:

Any alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

See 8 U.S.C. § 1227 (a)(2)(E)(ii) (2008). If you are concerned about your DACA status or immigration status and face a hearing for a restraining order, you need to consult a criminal defense attorney right away.

Restraining Orders and Citizenship Applications

If you're facing a restraining order hearing in New Jersey and you have a pending citizenship application, you're undoubtedly concerned about how a restraining order can affect you. Unfortunately, any criminal conviction has the potential to result in deportation or derail your citizenship application. Rest assured, a FRO in New Jersey is a civil, not a criminal, offense and should not result in deportation. But a FRO can affect your ability to become a naturalized citizen. As part of the naturalization process, you must establish that you are of “good moral character,” and a restraining order could affect that.

However, if you violate a restraining order, it is a criminal offense and can result in deportation. Violating a restraining order in New Jersey is a fourth-degree offense and can result in a jail sentence of up to 18 months. If you're in the midst of the citizenship process and are facing a petition for a restraining order against you, you should consult with an experienced New Jersey criminal defense attorney as soon as possible.

Hire an Experienced Restraining Order Attorney

If you're served with a temporary or final restraining order, your first step should be to contact an experienced criminal defense attorney. Attorney Joseph D. Lento and the experienced team at the Lento Law Firm can help. Attorney Lento and his team have been helping people in New Jersey through the restraining order process for years, and they understand the urgency of the matter. To find out how they can help you, call the Lento Law Firm at 888-535-3686 or schedule an appointment online.

​​​Contact The Lento Law Firm Today

When it comes to criminal defense cases, you need the right person in your corner. To learn more about how Mr. Lento can help you, call the Lento Law Firm today at 888-535-3686. or contact him online.

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