Deportable Criminal Offenses

There are five major categories of “deportable criminal offenses.” They are:

crimes involving moral turpitude
aggravated felonies
drug offenses
gun offenses
domestic violence crimes

We’ll explore each of these in more detail below.

Crimes Involving Moral Turpitude

U.S. immigration law holds that an immigrant is deportable if he or she:

is convicted of a crime involving moral turpitude committed within five years (or 10 years if the immigrant is a lawful permanent resident) and
is convicted of a crime for which a sentence of one year or longer may be imposed. 8 U.S. Code § 1227

What Exactly Does That Mean?

U.S. immigration law does not explicitly define a crime involving moral turpitude (CIMT). However, the Tenth Circuit Court of Appeals has held that:

moral turpitude refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1310 (10th Cir. 2015)

Examples of Crimes Involving Moral Turpitude

Some documented examples of CIMTs include:

murder
arson
rape
robbery
theft
fraud

A conviction related to any of these crimes could result in your deportation.

The Petty Offense Exception

Immigration law allows a crime to escape classification as a crime of moral turpitude if it is considered a petty offense.

The petty offense exception could apply if:

the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). 2008 Immig. Rptr. LEXIS 14487, *9-10

Aggravated Felony

An offense does not need to be considered “aggravated” for a felony to qualify as a deportable criminal offense. Instead, the offense merely needs to have been designated as an aggravated felony by the Immigration and Nationality Act (INA).

8 U.S. Code § 1101 sets forth nearly 30 examples of crimes that are considered aggravated felonies for U.S. immigration purposes. Some are your stereotypical violent crimes, such as rape, murder, or sexual abuse of a minor. However, other nonviolent crimes, such as theft or fraud of more than $10,000, are also considered aggravated felonies and therefore are deportable offenses.

An Example of an Aggravated Felony

In 2004, Christian Israel Rivera-Ledesma was convicted of first-degree criminal trespass, a class 5 felony in Colorado. Three years later, an immigration judge ordered him removed from the United States and back to his native Mexico.

Rivera-Ledesma appealed, arguing that criminal trespass was not a crime of violence and therefore not an aggravated felony. However, the Board of Immigration Appeals upheld the judge’s decision:

As found by the Immigration Judge, the United States Court of Appeals for the Tenth Circuit, the jurisdiction in which this case arises, has found that a Colorado conviction for the offense of criminal trespass of a dwelling is a crime of violence and an aggravated felony under the Act. 2008 Immig. Rptr. LEXIS 9241, *3

Other Crimes of Violence

The term “crime of violence” is defined in 18 U.S.C. § 16 as:

an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. In re PUENTE-Salazar , 22 I. & N. Dec. 1006, 1010 (B.I.A. September 29, 1999)

A DWI Can be a Deportable Criminal Offense

In the above-cited case, Arturo Puente-Salazar, a lawful permanent resident, was convicted of driving while intoxicated (DWI) in Texas. A DWI is typically a misdemeanor offense in Texas. However, since Puente-Salazar already had two previous DWI convictions, the offense became a third-degree felony.

An immigration judge ordered Puente-Salazar removed from the United States and deported to his native Mexico. Puente-Salazar appealed the decision, but the Board of Immigration Appeals found that:

by its nature, operating a motor vehicle in a public place while under the influence involves a substantial risk that physical force against the person or property of another may be used in the commission of the offense and that such a crime, when a felony under Texas law, constitutes an aggravated felony. In re PUENTE-Salazar , 22 I. & N. Dec. 1006, 1013 (B.I.A. September 29, 1999)

The BIA dismissed Puente-Salazar’s appeal.

Drug Offenses

Non-U.S. citizens convicted of drug crimes can face steep immigration consequences. Simply possessing a small amount of marijuana for personal use can be enough to get an immigrant deported.

Firearm Offenses

Almost any gun-related conviction is considered a deportable criminal offense. Additionally, certain firearm offenses also are considered aggravated felonies.

Domestic Violence Crimes

Crimes involving domestic violence, stalking, and child abuse, child neglect, or child abandonment are often deportable criminal offenses. For immigration law purposes, “domestic violence” refers to any crime of violence committed against:

your current or former spouse
a person with whom you share a child
someone you are cohabiting with or have cohabited with, such as a spouse
someone similarly situated to a spouse under the domestic or family violence laws of the jurisdiction where the offense occurs, or
any person who is protected from your acts under federal, state, local, or tribal domestic violence laws. 8 U.S.C.S. § 1227

How Courts Determine Whether a Crime is a Deportable Criminal Offense

Immigration courts use a method known as the categorical approach to determine whether a crime is a deportable criminal offense. In Tenth Circuit courts, this involves something called the realistic probability test.

The first step of the categorical approach is comparing the “generic” definition of the removal ground to the elements of the criminal statute. Every criminal law term that appears in the immigration removal grounds has a technical federal definition. This is referred to as the “generic” definition or the “generically defined offense.”

The Board of Immigration Appeals, or BIA, will compare this generic definition to the elements of the statute under which you were convicted. In doing this, they identify the minimum possible conduct that has a realistic probability of being prosecuted under the criminal statute. That conduct is then compared to the generic definition.

Categorical Match

The definition of the state offense may be narrower than the definition of the removal ground. This means that there is no way to commit the offense without also triggering the removal ground. This is called a categorical match. A categorical match means the appeal is lost.

However, if the state offense covers a broader range of conduct than the generic definition, the offense is considered “overbroad” compared to that removal ground. There is no categorical match.

Modified Categorical Approach

If a statute of conviction is not categorically a deportable offense, the next step is to determine whether the statute is divisible. If the statute is divisible, courts will use the modified categorical approach.

A statute is divisible when:

it sets out multiple distinct offenses, as opposed to only one.
at least one of those offenses is a categorical match to the relevant generic standard.

If a statute is overbroad and indivisible, the immigrant wins.

Let Us Help You if You Have Been Accused of a Deportable Criminal Offense

It can be tempting to accept a plea deal if you have been accused of one of the deportable criminal offenses covered in this article. However, your future in the U.S. depends on securing effective legal counsel as soon as possible. Call 303-688-0944 today to begin your case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

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