Crime-Related Grounds of Deportability
This section lists the main features of the different categories of criminal offenses that trigger deportability. The criminal grounds of deportability generally require that a “conviction” exist. There is a statutory definition of conviction for immigration purposes. State law does not determine whether a state disposition will be considered a conviction for immigration law purposes. For example, dispositions involving drug treatment court, deferral of prosecution, expungement, and prayers for judgment continued may be treated as convictions for immigration purposes.

• Aggravated Felonies Generally Definition. A noncitizen is deportable if convicted of an aggravated felony any time after admission. INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). “Aggravated felony” is an immigration law term that includes an expanding list of offenses defined in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43). The label is somewhat misleading, as an offense classified as an “aggravated felony” does not have to be either “aggravated” (as that term may be commonly understood) or a “felony” under state law. As a result of broad interpretations of the statutory language, the term may include some state misdemeanors, such as maintaining a place of prostitution and misdemeanor possession of marijuana if the defendant has a prior drug conviction.
  
     The long list of aggravated felony offenses can generally be classified into the following groupings:
  • Specific offenses, regardless of sentence, such as murder, rape, sexual abuse of a minor, drug trafficking (discussed further below), and firearm trafficking
  • Specific offenses for which an active or suspended sentence of imprisonment of one year or more is imposed (for definition of sentence length, see infra § 4.3), such as theft, burglary, forgery, crimes of violence (defined at 18 U.S.C. § 16 and discussed further below), perjury, and obstruction of justice
  • Fraud or deceit offenses in which the loss to the victim exceeds $10,000 (discussed infra § 6.2B)
  • Any attempt or conspiracy to commit any of the enumerated aggravated felony offenses (solicitation to commit any of the enumerated aggravated felony offenses is possibly an aggravated felony)
      The following table lists the broad categories of offenses classified as aggravated felonies. Offenses that do not meet these criteria may still constitute deportable or inadmissible offenses, discussed further below, but they do not trigger the severe consequences associated with aggravated felony convictions.
  
  Aggravated Felonies Regardless of Sentence
  • Murder
  • Rape (it is unclear whether a conviction of sexual offense under N.C. law constitutes rape for immigration law purposes, but such a conviction is
  • Sexual abuse of a minor (including indecent liberties with a minor under N.C. law)
  • Drug trafficking
  • Firearm trafficking and certain other firearm offenses
  • Offenses involving demands for ransom
  • Offenses involving child pornography
  • Offenses involving prostitution business
  • Offenses involving slavery or involuntary servitude
  • National security offenses
  • Alien smuggling offenses, with an exception for spouse, parents, and children
  • Illegal reentry after being previously deported for an aggravated felony
  • Miscellaneous federal offenses, including racketeering and certain gambling offenses
  • Offenses relating to failure to appear for service of sentence if the underlying offense is punishable by five years or more imprisonment
  • Offenses related to bail jumping if underlying offense is a felony punishable by two or more years imprisonment
  Aggravated Felonies Triggered by a One-Year Term of Imprisonment (Active or Suspended) or More
  • Crimes of violence
  • Theft or burglary offenses (including possession or receiving of stolen property)
  • Passport or document fraud offenses
  • Offenses related to counterfeiting
  • Offenses related to forgery
  • Offenses related to commercial bribery
  • Offenses related to trafficking in vehicles with altered identification numbers
  • Offenses related to obstruction of justice
  • Offenses related to perjury or subornation of perjury
  • Offenses related to bribery of a witness
  Aggravated Felonies Triggered by More than a $10,000 Loss
  • Offenses involving fraud or deceit with a loss to the victim of more than $10,000
  • Money laundering offenses involving more than $10,000
  • Tax evasion with a loss to the government of more than $10,000
  Consequences. Convictions for aggravated felonies carry the most severe immigration consequences. A conviction for an aggravated felony not only triggers deportability, but it also bars eligibility for almost all forms of relief from removal, effectively subjecting the individual to mandatory removal without any consideration of his or her equities. When removed on the basis of an aggravated felony conviction, an individual is permanently inadmissible and thus permanently barred from returning to the U.S. (unless special permission from the government is obtained, which is quite difficult). See INA § 212(a)(9)(A)(ii), 8 U.S.C. § 1182(a)(9)(A)(ii). In addition, an individual removed on the basis of an aggravated felony conviction who returns to the U.S. unlawfully may be imprisoned for up to twenty years if federally prosecuted for illegal reentry. See INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).
• Specific Types of Aggravated Felonies
  Crime of Violence Aggravated Felonies. Offenses that constitute “crimes of violence” within the meaning of immigration law are aggravated felonies if a sentence of imprisonment (active or suspended) of one year or more is imposed.
      The definition of crime of violence is broad in scope. It includes “(a) 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 (b) 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.” 18 U.S.C. § 16. The definition has been the subject
  
      of much federal litigation. Offenses that have been found to constitute crimes of violence generally include sexual assaults, intentional assaults, kidnappings, robberies, and burglaries.
      The Supreme Court has held that an offense requiring only proof of accidental or negligent conduct, even when involving serious physical injury or death, is not an aggravated felony “crime of violence,” as defined in 18 U.S.C. § 16. Leocal v. Ashcroft, 543 U.S. 1 (2004) (holding that a state offense of driving under the influence of alcohol and causing serious bodily injury, which does not have a mens rea component or requires only a showing of negligence in the operation of a vehicle, is not crime of violence under 18 U.S.C. § 16). For example, a conviction of felony serious injury by vehicle, G.S. 20-141.4(a3), which penalizes unintentionally causing serious injury when driving while impaired (G.S. 20-138.5), should not qualify as a crime of violence aggravated felony even if the person receives a sentence of imprisonment of one year or more.
      It is unclear whether a state offense that requires proof of reckless use of force qualifies as a crime of violence.
  Drug Trafficking Aggravated Felonies. Drug trafficking offenses within the meaning of immigration law are aggravated felonies regardless of the length of the sentence imposed.
      Federal law, not state law, determines whether a state offense constitutes an aggravated felony “drug trafficking” offense. See INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (drug trafficking crime is defined at 18 U.S.C. § 924(c)). Previously, in some federal circuits, almost any state drug felony offense qualified as a drug trafficking offense. On December 5, 2006, however, the Supreme Court clarified that a misdemeanor or felony conviction for first-time simple possession of a controlled substance—except for possession of more than five grams of crack cocaine or any amount of flunitrazepam (colloquially known as the “date rape drug”)—is not a “drug trafficking” aggravated felony offense. Lopez v. Gonzalez, ___U.S.___, 127 S. Ct. 625 (2006). A subsequent Texas drug possession conviction (including a misdemeanor offense) may, however, be deemed a drug trafficking aggravated felony. A conviction of any drug sale or possession with intent to sell continues to qualify as a drug trafficking aggravated felony
  
  “Drug Trafficking” Aggravated Felony Offenses in Texas
  • Any manufacture, sale, or delivery of controlled substance offense
  • Any possession of controlled substance with intent to manufacture, sell, or deliver offense
  • Maybe a second N.C. drug possession offense
  Not “Drug Trafficking” Aggravated Felony Offenses
  • Any first-time possession of controlled substance, whether felony or misdemeanor, with the exception of more than five grams of crack cocaine or any amount of flunitrazepam (date rape drug)
  • Possession of drug paraphernalia
  A first-time conviction for simple drug possession (without an intent to sell or distribute) will still render a lawfully admitted client deportable for a controlled substance conviction, with limited exceptions for small amounts of marijuana. However, because such a conviction will not constitute a drug trafficking aggravated felony, client may be eligible for relief from removal.
  
  Firearm Aggravated Felonies. A firearm offense can be considered an aggravated felony on three different grounds. First, certain offenses involving sale or delivery of firearms may be deemed a firearm trafficking offense. Second, specific firearm offenses, such as possession of a machine gun and possession of firearm by felon, will be considered aggravated felonies because similar federal offenses have been labeled as aggravated felonies in the immigration statute. Third, any firearm offense might be considered a “crime of violence” aggravated felony if accompanied by a sentence of imprisonment (active or suspended) of one year or more.
• Conviction of a Crime Involving Moral Turpitude
  A noncitizen may be deportable for a conviction of a crime involving moral turpitude (CMT) depending on the potential length of sentence, the number of CMT convictions, and the date the offense was committed in relation to when the noncitizen was admitted to the U.S. (discussed under Consequences, below).
  
  Definition. There is no statutory definition for the immigration term “crime involving moral turpitude” (CMT). There is, however, a considerable amount of case law governing what constitutes a CMT. As a general rule, a crime involves “moral turpitude” if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. See, e.g., Matter of Olquin, 23 I&N Dec. 896 (BIA 2006). The CMT label covers a broad category of criminal offenses and generally includes:
  • offenses in which either an intent to steal or defraud is an element (such as theft and forgery offenses)
  • many aggravated assaults (depending on whether infliction of bodily injury is an element)
  • most sex offenses
      Examples of crimes not involving moral turpitude include simple assault, misdemeanor breaking and entering, carrying a concealed weapon, trespass, unauthorized use of a vehicle, drunk and disruptive, disorderly conduct, and regulatory offenses.
  
  Assault Offenses. Simple assault or battery is generally not deemed to involve moral turpitude for purposes of immigration law. See Matter of Short, 20 I&N Dec. 136 (BIA 1989). The Board of Immigration Appeals has held that this general rule does not apply, however, where an assault or battery necessarily involves some aggravating dimension that significantly increases the culpability of the offense, such as the perpetrator’s use of a deadly weapon or the infliction of serious injury on a person whom society views as deserving of special protection, such as children, domestic partners, or peace officers. See Matter of Sanudo, 23 I&N Dec. 968 (2006). It is unclear whether assault on a female, assault on an officer, or assault on a child constitutes a CMT offense, as these statutes do not require an infliction of bodily injury. Assault with a deadly weapon is a CMT offense.
  
  Impaired Driving Offenses. A conviction for impaired driving may be a CMT depending on the presence of aggravating or grossly aggravating factors. The Board of Immigration (BIA) has held that a simple driving while impaired offense is not a CMT. See Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001). Further, an offense of driving while impaired with two or more prior convictions for simple driving while impaired under an Arizona statute has been held not to be a CMT. See id. In contrast, the BIA has held that a conviction for an aggravated DWI offense containing an element of driving with a revoked license is a CMT. Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999).
  
      Under this case law, an impaired driving conviction under state law will not constitute a CMT offense if there are no aggravating sentencing factors. An impaired driving conviction with an aggravating sentencing factor of driving with a revoked license is possibly a CMT offense. It is unclear because the case law requires that the driving with a revoked license component be an element of the offense, as opposed to a sentencing factor. Impaired driving convictions with other aggravating factors are probably not CMTs under current case law. (If the record of conviction establishes the use of a controlled substance, however, it is possible that an impaired driving conviction may be a removable offense under the controlled substance ground of deportability or inadmissibility.)
  
  Consequences. A noncitizen is deportable if convicted of one CMT committed within five years of admission to the U.S. and punishable by at least one year in prison. See INA
  
  § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).
      A noncitizen is also deportable if convicted of two or more CMTs, not arising out of a single scheme of criminal misconduct, committed at any time after admission and regardless of the actual or potential sentence. See INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii). Two CMTs arising out of a separate scheme, that are consolidated for judgment or are run concurrently, will likely still be considered separate convictions for immigration purposes and will trigger deportability. Conversely, if a person is convicted of two or more CMTs arising out of a single scheme, the convictions should not trigger deportability.
• D. Conviction of Any Controlled Substance Offense
  Conviction of Any Controlled Substance Offense. A noncitizen is deportable for any violation of law relating to a controlled substance, whether felony or misdemeanor, except for a single offense of simple possession of 30 grams or less of marijuana. See INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i). That offense is not a deportable offense if the defendant has no prior drug convictions. A drug paraphernalia conviction is a deportable offense, however. “Controlled substance” is defined by federal law and refers to substances covered by the federal drug schedules in 21 U.S.C. § 802.
  
  Drug Abuse or Addiction. A noncitizen is also deportable if he or she is or has been a drug abuser or addict at any time after being admitted to the U.S. See INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii). This ground of deportability does not require a conviction. Neither the immigration statute nor the regulations define “abuse” or “addiction” in the deportability context. This ground is not often charged in removal proceedings and is a less frequent basis to deport. It is more likely to come up during an application for relief from removal or during naturalization proceedings. Because there is very little case law on point, it is unclear what sorts of admissions or conduct would qualify as drug abuse or drug addiction. It is possible, however, that ICE might rely on an admission of drug use on the record in any sort of criminal case to demonstrate drug addiction or drug abuse.
• E. Conviction of a Firearm or Destructive Device Offense
  A noncitizen is deportable for a single conviction of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, whether felony or misdemeanor, a firearm or destructive device (including part or accessory) as defined in 18 U.S.C. § 921(a). See INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C). The federal law is broader than some state laws and includes all firearms (handguns, rifles, shotguns, etc.), with no restrictions as to barrel length. There is an exception for antique firearms. A BB or pellet gun is not considered a firearm under the federal law.
      The ground of deportability for firearms and destructive devices offenses is very broad. Where the use of a firearm is an essential element of a crime, the conviction will be considered a firearm offense. See, e.g., Matter of P-F-, 20 I&N Dec. 661 (BIA 1993) (holding that convictions for first degree armed burglary and robbery with a firearm under Florida statue constituted a firearm conviction where the use of firearm was an essential element of the crime). A conviction under a divisible statute (which includes offenses both involving a firearm and not involving a firearm) is not a firearm offense unless the record of conviction establishes that the offense committed involved a firearm. See Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996); Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996); Matter of Madrigal, 21 I&N Dec. 323 (BIA 1996); see also infra § 3.5A (discussing significance of record of conviction).
  
  If a noncitizen client is convicted of a weapons offense, and the record of conviction does not establish that the weapon involved was a firearm, he or she should not be deportable for a firearm offense.
  
      Federal law also criminalizes the possession of a firearm by noncitizens unlawfully present in the U.S. and by certain nonimmigrant visa holders. See 18 U.S.C. § 922(g)(5). Noncitizens in North Carolina have been federally prosecuted for this offense.
• F. Conviction of a Crime of Domestic Violence, Stalking, Child Abuse, Child Neglect, or Child Abandonment, or a Violation of a Protective Order
  A noncitizen is deportable if convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment, whether felony or misdemeanor. See INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).
      These grounds of deportability only apply to convictions or violations occurring after September 30, 1996. See Section 350(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, Division C, 110 Stat. 3009-546.
  
  Crime of Domestic Violence. A crime of domestic violence has two main requirements. First, the offense must be a crime of violence as defined in 18 U.S.C. § 16. The definition of crime of violence for a crime of domestic violence is the same as for aggravated felonies. Second, the offense must be against a current or former spouse, co-parent of a child, a person with whom the defendant is or has cohabited as a spouse, any other individual similarly situated to a spouse, or other individual protected under federal, state, tribal, or local domestic or family violence laws. See INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).
      ICE has alleged that a conviction of assault on a female is a crime of domestic violence if against a protected individual. Some noncitizens, however, have successfully argued that assault on a female does not satisfy the crime of violence definition (the first requirement discussed above) and is, therefore, not a crime of domestic violence. There is no reported case law on this issue.
  
  Violation of a Protective Order. A noncitizen is also deportable if enjoined by a protective order and found by a civil or criminal court to have violated the portion of a protective order that protects against credible threats of violence, repeated harassment, or bodily injury. See INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii). In North Carolina, for protective order purposes, a domestic relationship is broadly defined to include persons of the opposite sex who have lived together, parents and children, grandparents and grandchildren, current or former household members, and persons involved in non-cohabitating romantic relationships. See G.S. 50B-1(b). A violation of such a protective order is a deportable offense, even though the covered relationships are broader than under federal law.
  
  Under certain circumstances, the grounds of deportability for a crime of domestic violence, stalking, and violation of a protective order may be waived by immigration authorities when the defendant has been battered or subjected to extreme cruelty and is not and was not the primary perpetrator of violence in the relationship. See INA § 237(a)(7), 8 U.S.C. § 1227(a)(7). If these circumstances seem to apply to a noncitizen client, any documentation in court that the particular incident was part of a larger pattern of abuse against the client may be helpful to that client in future immigration proceedings.
• G. Chart of Principal Deportable Offenses
  The following chart lists the principal categories of deportable offenses. It does not include some miscellaneous grounds involving infrequently charged federal crimes, which are generally not of concern to state law practitioners. An interested reader can find the complete list of the criminal grounds of deportability at INA § 237(a)(2), 8 U.S.C. § 1227(a)(2). There is also a growing list of security-related grounds of deportability and inadmissibility linked to criminal activity. This is a complicated and developing area of immigration law and covers alleged acts of terrorism, which a state law practitioner is unlikely to encounter. See INA § 237(a)(4), 8 U.S.C. § 1227(a)(4); INA § 212(a)(3), 8 U.S.C. § 1182(a)(3).
      Keep in mind that one offense can be classified under multiple categories of deportability. For example, a conviction of assault with a deadly weapon inflicting serious injury against a spouse may be an aggravated felony, crime involving moral turpitude, and crime of domestic violence.