Is an Immigrant Convicted of a Theft Deportable?
How to do the basic legal analysis of whether a theft crime makes a noncitizen deportable.
If you are a noncitizen of the U.S. and you 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 even 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.) This article will look at whether a theft 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 theft conviction on your immigration status. The overlay of criminal and immigration law is, without a doubt, one of the most complicated areas of law that exists.
Ideally, you should have consulted with an immigration attorney soon after you were arrested, to get advice on how to negotiate with the prosecutor so that your theft conviction (if it was unavoidable) is one that 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, and help you understand the basics of the analysis that has to happen next.
U.S. immigration law contains a long list of grounds of deportability – that is, reasons that you can be removed from the United States. (See “Grounds of Deportability: When Legal U.S. Residents Can Be Removed.”)
Crimes occupy a large part of that list of grounds. But the crimes are, in many cases, described in very general terms. So the question often becomes, does the exact crime that an 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 a ground of deportability?
This analysis involves asking (at a minimum) the following three questions:
- Is a theft a crime of moral turpitude?
- Is a theft an aggravated felony?
- Is a theft 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 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.
What Is Theft?
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.
Can a Theft Be a Crime of Moral Turpitude?
Regardless of what your crime was named, if it is viewed by society 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?”) A noncitizen 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 for this crime (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).)
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 his or her 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.
But don’t take this as the last word on whether you are deportable for theft. You will need an attorney to take a close look at the precise definition of the theft crime of which you were found guilty, and potentially the facts recorded in your case, to give it a full analysis or to argue that it was not a CMT that fits the grounds of deportation.
Can a Theft Be an Aggravated Felony?
A single conviction for an aggravated felony is enough to make a noncitizen deportable, regardless of the length of the possible sentence. And before you say, “But I didn’t commit a felony at all, much less an aggravated felony,” realize that it doesn’t matter what your crime was called. 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?”
Theft convictions can be considered to be aggravated felonies for immigration law purposes. In this case, it doesn’t matter whether you tried to permanently deprive someone of property (so joyriding, for example, could be an aggravated felony even if it wasn’t a crime of moral turpitude). 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).) Also, 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.
Is Theft Separately Listed on the Grounds of Deportability?
Theft is not among the crimes that U.S. immigration law separately lists as a ground of deportability.
For more information on issues relevant to this article, see “Crimes and U.S. Immigration.”