The state of New Jersey is known to have a large population of people of Indian origin. The proximity to New York, along with the comfort and quality of life that New Jersey has to offer, has proven popular to many Indian families prompting them to settle in the state. Nearly 11% of the population of Jersey City is made up of people of Indian origin, the highest proportion of any major American city.
The ability to feel close to others who share a similar culture, food, and social activities is important to many Indians that live in New Jersey. When conflicts arise within Indian communities, it is important to understand how state laws can affect everyone involved. One measure to deal with conflicts in New Jersey is a restraining order. Restraining orders can be ordered by the court to protect someone from another person. If you have legal questions about restraining orders or are facing a restraining order hearing, then it is important to speak to an experienced criminal defense attorney immediately.
What Is a Restraining Order?
A restraining order (RO) is a protective order that can be granted by a court to protect an individual from another individual. This protection is governed by what the provisions of the restraining order are. If the judge grants a restraining order, then it is likely that the defendant in the order will be prevented from having contact with the petitioner, along with other restrictions. These restrictions can prohibit or prevent where the defendant can go and what the defendant is allowed to do. It is common for the defendant in a restraining order to be prohibited from going to the petitioner's workplace, school, or residence. If the defendant in a restraining order lives with the petitioner, then the judge can force the defendant to move out of the home as part of the restraining order requirements.
Restraining orders are permanent until a judge agrees to cancel the restraining order. If the petitioner and defendant in a restraining order reconcile and want to have contact with one another, then it is important to know that having contact is still a violation. Contact will remain a violation until the judge lifts the order. If the defendant in a restraining order has contact before an order is lifted, then he or she can face criminal charges for the violation.
What Are the Legal Reasons to Grant a Restraining Order?
Restraining orders are available in specific scenarios where the court can offer protection to an alleged victim of various types of domestic violence and/or sexual assault. Anyone claiming that they are a victim of sexual assault can obtain a restraining order pursuant to the Sexual Assault Survivors Protection Act (SASPA). SASPA allows those claiming sexual assault to obtain a restraining order independent of any criminal case. The defendant being accused of sexual assault does not have to be facing criminal charges or even have the police called for a petitioner to seek a restraining order. Before SASPA was enacted in 2016, anyone seeking protective orders from a court regarding a sexual assault claim could only get them through a criminal proceeding if they were not in a “qualified domestic relationship” with the defendant.
SASPA allows a restraining order to be granted whether the petitioner knows the defendant or not. The defendant can be a complete stranger to the petitioner, and the petitioner can still seek and obtain a restraining order to prohibit any future contact between the parties. The passing of SASPA gave victims of sexual assault the ability to get court protection without the necessity to file a criminal complaint or be a part of a criminal case. Restraining order cases process much more quickly than criminal cases do and getting a no-contact order can be accomplished in a matter of days. The legal standard of proof to obtain a restraining order is lower than is needed to secure a criminal conviction, needing only a preponderance of the evidence as opposed to proof beyond a reasonable doubt.
Anyone seeking a restraining order must file a detailed petition with their local county court. In this petition, the person seeking protection is expected to answer several questions about the alleged incident, the relationship to the defendant, if any, and other details needed for the court to determine whether a restraining order is needed. The following types of conduct can be the basis for a restraining order:
The two main categories of actions that allow someone to seek and obtain a restraining order in New Jersey are sexual assault and domestic violence. Actions such as nonconsensual sexual contact, sexual penetration, or lewdness are contained in the sexual assault category for restraining orders.
Who May Seek a Restraining Order in New Jersey?
Restraining orders can generally be sought by petitioners in a domestic relationship with their alleged assailant. If someone alleges domestic violence and against someone else, then it typically means that the two are in a relationship of some kind. In New Jersey, petitioners must be in a domestic relationship with the defendant and a victim of domestic violence.
Victims of domestic violence must first be at least 18 years old or an emancipated minor; second, they must have been assaulted by a current or former dating partner, current or former spouse, current or former roommate, or someone they share a child with. If the defendant lives with the petitioner, then a restraining order can be sought.
New Jersey law also allows people to seek court protection under a temporary restraining order if there are allegations of sexual misconduct. Sexual misconduct is defined under New Jersey law to include rape, sexual assault, attempted rape, sexual assault, and lewdness. If a petitioner accuses someone of stalking them, then a restraining order can be authorized. The order can become permanent if the defendant is eventually convicted of stalking in criminal court.
There are Two Types of Restraining Orders in New Jersey:
- Temporary Restraining Orders (TROs)
- Final Restraining Orders (FROs)
Temporary Restraining Orders
Temporary restraining orders (TROs) are court-issued protective orders that serve to protect a complainant of domestic violence. A petitioner can obtain a TRO against a defendant if he or she is the victim of domestic violence. Petitioners are the ones seeking the court's protection, while defendants are the ones accused of committing harm. Once a petitioner files their petition for protection with the court, the court will conduct a hearing to allow the petitioner and judge to discuss the petition and allegations. These hearings are conducted with just the judge and petitioner. The defendant is not allowed at these hearings, nor is any attorney representing the defendant.
If the judge grants a TRO to the petitioner, then the local police will serve a copy of the TRO on the defendant. The restraints are effective immediately, and the court will assign a date, typically within ten days, for a hearing to determine if the protections of the TRO should be made permanent.
Final Restraining Orders (FROs)
Final restraining orders (FROs) are the permanent type of TROs. FROs require a hearing where both sides can be heard and present their cases. Both the petitioner and defendant are allowed to call witnesses and present evidence at a final restraining order hearing. Both sides can also be represented by counsel. For a judge to grant a FRO, the petitioner is required to prove three main points:
- The petitioner and defendant are in a qualified domestic relationship, or the case involves sexual assault or stalking
- The defendant committed an act of domestic violence or sexual assault as defined under New Jersey law
- The court must restrain the defendant to ensure the safety of the petitioner
If a FRO is granted, then the defendant can expect his life to be significantly impacted. It is common for a defendant in a FRO to be required to move, change jobs, and have child custody affected. If you are facing a restraining order, then it is important to have experienced counsel to help prepare your defense.
What Happens When a Restraining Order is Granted in New Jersey?
If a judge grants a FRO after completing a hearing, then the defendant can be restrained in several ways, including:
- No contact with the petitioner
- No third-party contact with the petitioner
- No attempted contact or third-party contact with the petitioner
- No actual or attempted nonconsensual sexual acts or any other acts against the petitioner
- No going where the petitioner is known to often go. These include the home, school, or workplace of the petitioner
- No threatening or stalking the petitioner
- No harassing the petitioner
In short, the defendant in a restraining order can face many restrictions that can be enforced by the court. It is important to follow any court orders to avoid violations if a restraining order is granted by a judge. If someone violates a restraining order, then he or she can face a criminal contempt charge. Criminal contempt charges for restraining order violations can result in a third-degree offense, a fourth-degree offense, or a disorderly person offense. These are criminal charge levels that carry varying levels of punishment and potential incarceration.
How Can a Restraining Order Affect the Indian Population Differently?
Whenever the court is involved, it is important to understand the effects of a court order or finding of liability or guilt in a case. When a noncitizen is involved, then there are additional things to consider in the form of effects and consequences on that individual's legal status in the United States. The Indian population in the United States is a fairly new population, with the majority of Indian Immigration taking place in the last 20 years. Since this population is so new, it is important to determine if a noncitizen is involved in a restraining order case. The outcome of a restraining order case can affect both noncitizen petitioners and defendants in different ways.
What Happens if a Noncitizen Violates a Restraining Order?
If a noncitizen has a restraining order granted against him or her, then it is important to be mindful of how violations can affect legal status in the United States. If someone violates a restraining order, then he or she will be arrested and sent to jail. Being jailed for a restraining order violation can make it more likely to be denied for a visa renewal. The information relating to the restraining order and any violations will also be included in a moral character report involving the noncitizen.
If the noncitizen petitions for a visa or specific status, then this moral character report will be reviewed by the federal government in determining whether to grant any petition. All noncitizens who desire to remain in the United States must be of good moral character, or they can be deported or prevented from entering. It is important to pay attention to the allegations made when a petitioner files for a restraining order. If there are allegations of domestic assault or sexual assault, then the defendant can also be facing criminal charges. Convictions for crimes such as sexual assault and domestic violence can result in the removal of a noncitizen from the United States permanently. If you are an Indian American and have been granted both citizenships, then a restraining order will affect you in the same way it would affect anyone else. Being a noncitizen is where additional problems can arise involving your immigration status because of a restraining order case.
Indian Immigration into the United States
The Indian population in the United States is fairly new, with approximately two-thirds of all Indian-born immigrants having entered the U.S. after the year 2000. The last decade has seen the heaviest immigration, with over 40% of Indian-born immigrants having entered the U.S. after the year 2010. Despite being a newer population, Indians account for about 6% of the U.S. foreign-born population. This makes Indians the second-largest immigrant group in the United States behind Mexicans.
This heavy immigration from India in the last twenty years is largely based on visas and educational programs for highly skilled workers and highly educated people. Many Indians saw the potential of living in the United States with their advanced skills and advanced educational degrees and made the move to the United States with their families. As this trend grew, more and more Indian families found their way to the United States through various visa programs.
The United Arab Emirates is the most popular destination for Indians living and working outside of India, but the United States ranks not far behind in second. This means that there are a lot of people from India that have not been here for very long, and many do not have citizenship.
The Prevalence of Indian Nationals in New Jersey
Many Indian families have settled in New Jersey during the last twenty years as Indian immigration into the United States increased. There are several reasons why Indian families found a home in New Jersey, including:
- The proximity to New York City. Many Indians work in the city, and the ability to live close enough to work while maintaining more of suburban life in New Jersey is appealing.
- There are many great educational options in New Jersey. Universities such as Rutgers, PACE, and Princeton are all nearby.
- There is excellent public transportation within New Jersey and into New York City.
With such a high concentration of Indian families in New Jersey, the growth of the Indian immigrant population is only expected to continue. In the 2010 New Jersey census, the data showed that New Jersey's Asian population has grown by more than 1,400% since 1970. This data is even before the massive increase in Indian Immigration into the United States that continued after 2010. Asian Indians make up the largest percentage of this group and have the largest minority. The main counties where most Indian families live in New Jersey are Hudson, Middlesex, Somerset, and Sussex Counties. If someone wants to file a restraining order, then they must file it in the court where they live.
What Are the Common Immigration Statuses that Affect Indians?
Several immigration statutes commonly apply to Indian nationals who are not U.S. citizens. These statutes include:
- Lawful Permanent Resident
A lawful permanent resident is an individual that has the right to work and live anywhere in the United States or any territory. After being a lawful permanent resident for a specific period, dependent on the situation, the individual can seek to become naturalized as a U.S. citizen. If an Indian national has a green card, then he or she is a lawful permanent resident. This status can also be conditional if the status is based on a marriage that is less than two years old.
- Lawful Non-Immigrant
There is a presumption under U.S. immigration law that anyone who enters the United States intends to stay. This makes someone an immigrant by default unless another status is granted to be considered a non-immigrant. A non-immigrant is someone that does not intend to stay permanently in the United States. There are several reasons why someone from India would enter the U.S. to only stay temporarily. Some examples include being an international student, a tourist, or a temporary international worker. These individuals have been approved for various visas depending on their situation.
- Humanitarian Deferred Action
If a noncitizen is a victim of a crime, then he or she could be entitled to humanitarian relief in the form of a long-term visa. These visas are known as U and T Visas. If a noncitizen has been the victim of violence and aids in the prosecution of the alleged offender, then he or she can obtain a U Visa. If the noncitizen is a victim of human trafficking, then he or she can obtain a T Visa. These visas allow the noncitizen to live and work in the United States and provide a pathway to citizenship. Human trafficking unfortunately is a problem in both the United States and India, respectively.
- No Legal Status
When someone has no legal status, it means they do not have a valid status in the United States currently allowing them to stay. If a noncitizen overstays a visa, violates the terms of a visa, violates terms of entry, or enters the U.S. with false or no documentation, then he or she is considered to have no legal status. Having no status can lead to removal from the United States.
How a Restraining Order Can Be Used Against a Noncitizen
Noncitizens must be careful when dealing with restraining order petitions. If a petitioner files for a restraining order, then it is important that the allegations made in the petition are not false. If a petitioner makes false allegations in a restraining order petition, then that can lay the foundation for criminal charges. If the petitioner is not a citizen and is convicted of making a false report, then this can affect that individual's immigration status and their ability to stay in the United States.
If a defendant in a restraining order petition is a noncitizen, then it is important to understand how the defendant's legal status can be affected if there are any violations. Any statements or admissions made in court during a restraining order case can be used against a noncitizen in immigration proceedings, regardless of whether the case resulted in a criminal conviction or not. These statements can be used to support deporting the defendant or making them unable to return to the United States due to a canceled visa or inadmissibility.
What Benefits Can an Indian Noncitizen Receive as the Petitioner in a Restraining Order Case?
If a petitioner in a restraining order case is an Indian noncitizen, then there are potential benefits to making a claim against the defendant. Under U.S. immigration law, the victim of abuse or trafficking can receive a humanitarian visa which gives a legal status and a pathway to U.S. citizenship.
If a noncitizen petitioner is granted a U Visa, then he or she can receive:
- Legal ability to live and work in the United States for up to four years
- Potential benefits for qualifying family members
- Additional benefits for family members that qualify
- The potential to be granted a green card after three years
The petitioner must allege a crime that qualifies him or her to receive a U Visa. These crimes can be prosecuted at either the federal, state, or local level. The types of crimes that qualify include:
- Sexual assault
- Kidnapping or holding someone hostage
- Domestic Violence
- Manslaughter or Murder
- Obstruction of justice
This is only a partial list of qualifying crimes for U Visa consideration. Other violent or dangerous crimes can also qualify a petitioner for a U Visa. Any attempt, solicitation, or conspiracy to commit any qualifying crimes are also qualifying crimes themselves.
Restraining orders in New Jersey often allege domestic violence or sexual assault of some kind. If the petitioner is not a citizen, then the potential of a U Visa can be enticing for the petitioner. The U Visa does not require a conviction or even criminal prosecution.
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.
If the petitioner seeking a restraining order is a noncitizen and is a victim of human trafficking, then he or she can be granted 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 legal status in the United States with the ability to live and work for up to four years. A green card is also possible after three years. It is more likely that a restraining order case will involve a U Visa issue than a T Visa issue, but the potential is there for a T Visa issue.
International Travel Concerns
A restraining order is unlikely to prevent the international travel of the defendant unless it somehow relates to the protection of the petitioner. An important caveat, however, is that a restraining order will often cause significant travel delays for defendants, especially those traveling by airline, including being stopped and delayed by U.S. Customs and Border Protection at the airport. It is not just a noncitizen who can face issues when traveling by airline for example, as these potential burdens can also be placed upon U.S. citizens of Indian descent who have a restraining order against them. Additionally, it is important to understand that the provisions of a restraining order remain active, even if the defendant travels outside of the country. If the defendant in a restraining order is a noncitizen, then a restraining order may result in the cancellation of a visa, which can have a significant impact on the defendant's ability to travel outside the United States. Without a valid visa or other approval to enter the United States, the noncitizen defendant may not be able to re-enter the country due to a restraining order case.
Potential Child Custody Issues
Restraining order cases have the potential to regulate child custody between parents if the parents are the petitioner and defendant. The judge in a restraining order case can set temporary orders regarding child custody and visitation. These orders are enforced by the court, and a violation will result in arrest. It is important to note that child custody orders in restraining order cases are not permanent and can be revisited by a family court judge at a later date to determine more permanent orders.
Domestic Violence Central Registry
If a defendant in a restraining order case is accused and convicted of domestic violence and had a final restraining order granted against them, then it is likely that the defendant is listed on the national domestic violence registry. This registry is an online database that includes the names of everyone convicted of domestic violence and had a final restraining order granted against them across the country. Anyone can easily use this public database to search names and see who is listed. The only way to be removed from this list is to have the final restraining order canceled. This can only happen if the petitioner and judge agree to cancel the restraining order at a later hearing. The state of New Jersey also maintains a separate domestic violence and restraining order registry.
What to Do If Facing a Restraining Order Petition
If you are facing a potential restraining order, then it is important to get in touch with an experienced attorney immediately. If you are an Indian citizen, then it is important to understand how a restraining order can affect your status here in the United States. Restraining order cases move much quicker through the court system than other types of cases. A restraining order case can be processed and decided in court within days. If a restraining order is granted against you, then the requirements in the restraining order can be enforced against you for up to three years. Restraining orders can also be renewed by the court as many times as the court sees fit. Restraining order laws are not designed to help defendants, so it is important that you act quickly and hire the best advocate. If you have legal questions, then call us at the Lento Law Firm so we can help!
Contact the Lento Law Firm Today
If you have questions about how a restraining order can affect you, then it is important that you speak to an experienced attorney. It is also critical to understand how a restraining order can affect your legal status in the United States if you are not a U.S. citizen. 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 attorney Joseph D. Lento and the Lento Law Firm are the right choice, call us at 888-535-3686 or contact us online.