Three of the most common crimes that can lead to removal, and how one would need to analyze whether the convicted person will, in fact, be ordered deported.
If you are a noncitizen of the U.S. and have been convicted of a crime—nearly any crime—there’s a serious possibility that you could be deported (removed) from the United States. This is true whether or not you are here in lawful status. You might hold a valid visa, or be a lawful permanent resident (green card holder), but you can still be deported for a crime. (If you’re not in lawful status in the U.S., you can of course be deported on that basis alone.)
Ideally, you should have consulted with an immigration attorney soon after the arrest, to get advice on how to negotiate with the prosecutor so that your conviction (if it was unavoidable) has the least possible effect on your immigration status. Whether or not that happened, we’re going to assume that the conviction is now a done deal; it’s on your record, and now it’s time to look into the basics of the legal analysis that must happen next.
Analyzing Whether a Crime Is a Ground of Deportation
U.S. immigration law contains a long list of grounds of deportability—that is, reasons a person can be removed from the United States. (See Grounds of Deportability: When Legal U.S. Residents Can Be Removed.) Crimes comprise a large part of that list.
But the crimes are, in many cases, described only in general terms. Then it becomes a matter for legal argument: Does the crime that the immigrant was convicted of—which conviction most likely was handed down in state court, under that state’s law—match the federal law’s description of one of the grounds of deportability? Answering this involves looking into (at a minimum) three concerns:
- Is the crime one of moral turpitude (CMT)? A noncitizen can be deportable for either:
- one crime of moral turpitude committed within five years of admission to the U.S., if, according to the charging statute, a prison sentence of one year or more could have been handed down for the crime and regardless of what sentence was actually imposed (I.N.A. § 237(a)(2)(A)(i)), or
- two or more crimes of moral turpitude that did not arise out of a single scheme of criminal misconduct. (I.N.A. § 237(a)(2)(A)(i)).
- Is the crime an aggravated felony? A single conviction for an aggravated felony is enough to make a noncitizen deportable, regardless of the length of possible sentence. It doesn’t matter what the crime was called, felony of otherwise. Immigration law contains its own definition: see What’s an Aggravated Felony According to U.S. Immigration Law?
- Is the crime one that’s listed by name on the grounds of deportability? The full list is in Section 237 of the I.N.A. It includes, for example, drug crimes, illegal firearms possession or sales, espionage, domestic violence, stalking, child abuse or neglect, human trafficking, terrorist activity, and more. In some cases, the crimes on this list might also be considered crimes of moral turpitude or aggravated felonies, but listing them separately leaves no doubt or room for argument.
To further complicate matters, the legal analysis may be affected by which federal circuit your case is being heard in (most likely where you live). If your immigration case is being handled in California, for instance, which is in the Ninth Circuit, the impact of certain crimes may be interpreted differently than if you were in New York, which is in the Second Circuit.
How Would a Theft Conviction Be Analyzed According to the Above Three Criteria?
Theft is usually defined as a taking of property or an exercise of control over someone’s property without consent, with the criminal intent to deprive the owner of the rights and benefits of ownership, even if this deprivation was not meant to be total or permanent.
Theft convictions have been found to be crimes of moral turpitude in some instances, most notably where the person intended to permanently deprive the rightful owner of property. If it was just a temporary taking—for example, the noncitizen took someone’s car for a joyride—that might not involve moral turpitude.
Theft convictions can also be considered aggravated felonies for immigration law purposes. It doesn’t matter whether you tried to permanently deprive someone of property; joyriding, for example, could be an aggravated felony even if it wasn’t a crime of moral turpitude. And the immigration laws specifically state that theft (including receipt of stolen property) is an aggravated felony if the defendant received a sentence of a year or more. (I.N.A. § 101(a)(43)(G).)
In addition, decisions from the Board of Immigration Appeals (B.I.A.) have held that attempted theft, as well as attempted possession or possession of stolen property offenses, can be considered aggravated felonies. However, courts have held that identity theft is not necessarily an aggravated felony.
Theft is not among the crimes that U.S. immigration law separately lists as a ground of deportability.
How Would a Burglary Conviction Be Analyzed According to the Above Three Criteria?
Under typical state laws, burglary is defined as unlawful or unprivileged entry into, or remaining in, a building or structure, with the intent to commit a crime. So, for instance, while some states might have a crime called burglary of a vehicle, this is unlikely to be considered a burglary under federal immigration laws.
A burglary committed with some degree of intent, deliberateness, willfulness or recklessness, may be considered a crime of moral turpitude. For example, the B.I.A. found that burglary of an occupied dwelling was a CMT because there was no way the person could have been convicted for anything less than an intentional crime.
Burglary is, under the immigration law, considered an aggravated felony if you received a sentence of one year or more. (I.N.A. § 101(a)(43)(G).) Burglary is not, however, one of the crimes specifically listed within the grounds of deportability.
How Would an Assault Conviction Be Analyzed According to the Above Three Criteria?
Assault is commonly defined as an intentional act that creates apprehension in another person of an imminent and harmful or offensive contact. However, U.S. states’ laws differ in their precise definitions of assault.
Whether an assault is deemed a crime of moral turpitude depends on a case-by-case determination. For example, the B.I.A. has held that a conviction of assault with a deadly weapon (aggravated assault) under Illinois law is a conviction of a crime of moral turpitude. (See Matter of Medina, 15 I&N Dec. 611 (BIA 1976).) However, an immigrant convicted of assault in a different state might not necessarily be treated the same way, because that state’s statute may be written (and interpreted) differently.
A “minor” crime such as misdemeanor assault may be considered a crime of violence and thus an aggravated felony. (Learn more in What’s an Aggravated Felony According to U.S. Immigration Law?) The wording of the particular statute and conviction, as well the jurisdiction where the court sits, will determine whether a crime will be considered to be a crime of violence and thus an aggravated felony, under U.S. immigration law.
Assault is not, however, among the crimes that U.S. immigration law separately lists as a ground of deportability.
Consult an attorney for a full analysis of any criminal act on your record and possible resulting vulnerability to deportation.