DID THE SUPREME COURT MAKE DEPORTATION FOR “CRIMES OF VIOLENCE” LESS LIKELY?

Did the Supreme Court make deportation for “Crime of Violence” less likely?

In a case entitled Borden v. United States, the United States Supreme Court (SCOTUS) recently clarified the level of mental awareness that persons must have in order to be convicted under the Armed Career Criminal Act (ACCA). In that case, the Court was interpreting the meaning of the language used to describe the commission of a “violent felony” under the ACCA (a federal statute).

While SCOTUS was not ruling on an immigration law specifically, the language that was being interpreted was very similar to language used in immigration laws to describe criminal behavior that can result in deportation. Therefore, the Court’s ruling may have applicability in immigration deportation proceedings where a noncitizen is being deported for committing a crime of violence.

Noncitizen Deportation for Criminal Activity

The Immigration and Nationality Act (INA) sets out the circumstances and behaviors that may result in deportation. Criminal conduct by a noncitizen often results in removal from the United States. One of the criminal activities that will result in deportation is for a noncitizen to commit an aggravated felony.

Aggravated felonies are a category of criminal behaviors identified under immigration laws – some of which do not involve aggravating circumstances or are not felonies under criminal law. However, an aggravated felony conviction means that most defenses to deportation will not be available. Those deported for committing an aggravated felony cannot legally return to the US for at least 20 years.

A crime of violence is an aggravated felony under immigration laws.

Deportation Based On Commission of a Crime of Violence

A noncitizen convicted of a “crime of violence” has committed an offense punishable by imprisonment of at least 1 year that:

• has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
• any felony that involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense

Similarly, ACCA defines a “violent felony” as a crime punishable by imprisonment for more than 1 year that

• has as an element the use, attempted use, or threatened use of physical force against the person of another, or
• is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

What the Supreme Court Decision Means for Immigration Law

In the Borden case, the defendant [Borden] was convicted of illegally possessing a firearm and the government tried to impose the mandatory 15-year sentence under ACCA for persons who illegally possess a firearm and have 3 or more previous convictions involving a violent felony.

One of Borden’s previous convictions was for “reckless aggravated assault” under state law and Borden argued that the mental state of recklessness did not rise to the level of purposeful or knowing, which is the standard contemplated in a charge for the use of force against the person of another.

The Supreme Court did not consider Borden’s previous conviction under the second definition of violent felony because it had previously ruled in Johnson vs. United States that the provision violated the Constitution. The provision proscribing “conduct that presents a serious potential risk of physical injury to another”‘ was determined to be too vague and therefore a violation of the right to due process.

The Court agreed with Borden and ruled that the definition of violent felony was directed at persons who either intended the violent conduct toward a particular person or who knew that the conduct would likely occur toward a person. A violent felony did not include conduct where a person acts without regard for the consequences of their conduct and without the knowledge that any particular person will be harmed.

What this decision potentially means for those facing deportation for a crime of violence is that conviction of a crime that merely requires a mental state of recklessness will not be severe enough to be a crime of violence under immigration laws.

But Keep a Couple of Things in Mind

While there are similarities between a violent felony under ACCA and a crime of violence under INA, there are also some important differences that make being convicted of a crime of violence more likely than being convicted of a violent felony.

• Crime of violence includes the property of another – So taking a sledgehammer to someone’s car and totaling it is not a violent felony but it is arguably a crime of violence.
• Immigrants don’t always get constitutional protections – Anyone within US borders is theoretically protected by the US Constitution – including those here illegally. However, there are many instances where immigrants are not being given the same constitutional rights as citizens.

The Supreme Court may have found the residual clause in Johnson – a case against a US citizen – violated constitutional rights, but that doesn’t guarantee the same result for a similar clause under immigration laws. The residual clause defining a crime of violence provides a second means to convict an immigrant of an aggravated felony – the most deportable of offenses.

Contact Us Today

If you need a good immigration lawyer, contact the Oxford Immigration Lawyers (OIL) today at (800) 712-0000. The immigration laws are complex and having the right lawyer by your side is crucial. Make an appointment with OIL today and let us help you navigate the immigration system.