Is an Immigrant Convicted of a Burglary Deportable?
Whether a noncitizen may lose the right to a visa or green card due to a burglary record.
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If you are a noncitizen of the U.S. and you have been convicted of a crime – nearly any crime – you should be worried about the very real possibility that you will be deported (removed) from the United States. This is true whether or not you are in the U.S. in lawful status. You might hold a valid visa, or even be a lawful permanent resident (a green card holder), but you can still be deported for certain crimes. (If you’re not in lawful status in the U.S., you can of course be deported on that basis alone.) This article will look at whether a burglary conviction, in particular, could make you deportable.
We need to state up front that you will want to get an experienced immigration attorney's help with researching the effect of your burglary conviction on your immigration status. The overlay of criminal and immigration law is, no question, one of the most complex areas of law in existence.
Hopefully, you consulted with an immigration lawyer soon after you were arrested, for advice on how to negotiate with the prosecutor to make sure your conviction (assuming it was unavoidable) has the least possible effect on your immigration status. Whether or not that happened, we will assume that the conviction is now final, and help you understand the basics of the legal analysis that must happen next.
U.S. immigration law contains an extensive list of grounds of deportability – that is, reasons that a noncitizen can be removed from the United States. (See “Grounds of Deportability: When Legal U.S. Residents Can Be Removed.”)
Crimes take up a large part of that list of grounds. But the crimes are, in many cases, described in broad terms. So the question typically becomes, does the exact crime that you were convicted of – which conviction most likely took place in state court, under one state’s law – match the federal law description of a ground of deportability?
This analysis usually involves asking (at a minimum) the following three questions:
- Can a burglary be a crime of moral turpitude?
- Can a burglary be an aggravated felony?
- Is burglary a crime that’s separately listed on the grounds of deportability?
To further complicate matters, the legal analysis may be affected by which federal court circuit you are in. If your immigration case is being heard in Washington, for instance, which is in the Ninth Circuit, the impact of certain crimes may be interpreted differently than if you were in Texas, which is in the Fifth Circuit.
What Is a Burglary?
Burglary is usually 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 the federal immigration laws.
Can Burglary Be a Crime of Moral Turpitude?
Regardless of what your crime was named, if it is viewed as reprehensible, and was committed with some degree of intent, deliberateness, willfulness or recklessness, it may be considered a crime of moral turpitude, or CMT. (Also see, “What’s a Crime of Moral Turpitude According to U.S. Immigration Law?”) You can be deportable for either:
- one crime of moral turpitude committed within five years of admission to the U.S. if you could have received a prison sentence of one year or more (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).)
Burglary has been found to be a crime of moral turpitude in some instances. For example, the Board of Immigration Appeals (B.I.A.) found that burglary of an occupied dwelling was a CMT because there was no way the noncitizen could have been convicted for anything less than an intentional crime.
But don’t take this as the last word on the subject. You will need an attorney to take a close look at the exact language of the burglary law under which you were convicted, and potentially the facts recorded in your case, to give it a full analysis – or to find a way to argue that it was not a CMT.
Can a Burglary Be an Aggravated Felony?
A single conviction for an aggravated felony is enough to make you deportable, regardless of how long the possible sentence for the crime was. And if you’re thinking, “But I didn’t commit a felony at all, much less an aggravate felony,” it’s not that simply. The immigration law contains its own definition of aggravated felony, as described in Nolo’s article “What’s an Aggravated Felony According to U.S. Immigration Law?”.
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).)
Is Burglary Separately Listed on the Grounds of Deportability?
Burglary is not one of the crimes that is specifically named within the grounds of deportability.
For more information on issues relevant to this article, see “Crimes and U.S. Immigration.”