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Criminal law contains many sentence enhancement provisions, in which a defendant may be subject to additional penalties based on the facts and circumstances of his/her case. As an example, hate crime statutes will increase the penalty of certain crimes if the victim is of a delineated class of persons. Similarly, deportation provisions in Federal Law have been structured so that if an alien is convicted of a “crime of violence,” that person will almost certainly be deported. In California, the U.S. Government attempted to have a twice-convicted burglar deported, claiming that first-degree burglary, under California law, is a crime of violence. However, a recent U.S. Supreme Court decision has negated this claim, holding that the description of the crime is too vague and uncertain to be deemed a crime of violence in all instances. A brief summary of Federal Deportation Law, as applied to California crimes, will be discussed below.

Immigration and Nationality Act

Originally enacted by Congress in 1952, the Immigration and Nationality Act (INA) governs immigration to and citizenship in the United States. One of the more relevant aspects of the INA concerning criminal activity states, simply, that an alien convicted of an aggravated felony any time after admittance into the United States may be deported. Accordingly, there are two requirements of this clause:

●     First, the person must be an alien, defined as a person who is neither a citizen nor a national of the United States; and

●     Second, the person must have committed an aggravated felony.

In this case, an aggravated felony includes crimes of violence, which is further defined as a felony crime (i.e., a crime punishable by a jail term greater than one year) that involves substantial use or likelihood of use of physical force against a person or a person’s property when committing the crime.

California Burglary

In the case referenced above, the defendant was twice convicted of first-degree burglary(also known as residential burglary), which occurs when one enters any residence with the intent to commit grand or petit larceny or any felony. After the second conviction, a U.S. Immigration judge attempted to have the defendant, a Philippine native lawfully resident in the United States, deported to the Philippines, claiming that the burglary contained a substantial risk that physical force against a person may be used. However, the Supreme Court indicated that, as written, California’s first-degree burglary law is too vague to be considered an aggravated felony. Specifically, one can violate this law if one enters an unoccupied home (as the defendant did), in which case there is no substantial risk of physical force. Engaging with an experienced criminal defense attorney will allow a defendant to present arguments such as this one, as well as other extenuating circumstances, in an attempt to prevent a judge from invoking other aspects of state and/or federal law which may provide added sentencing or other penalties.

Other Crimes

Additionally, and while beyond the scope of this discussion, the Supreme Court also seemed to imply that this holding may be applicable to other crimes which, as written, are just as vague. However, the Supreme Court did not state explicitly which crimes would fit within this holding. Thus, it becomes even more important to engage an experienced criminal defense attorney who can counter the assertion of a prosecutor who wishes to use this enhancing aspect of the INA.

Seek Legal Advice

If you are under suspicion for a crime, it is vitally important to obtain the services of an experienced criminal defense attorney as soon as possible. Further, if the crime may be subject to various sentence enhancements, including deportation, and you are not a citizen of these United States, it is even more critical to hire an attorney. The attorneys at Manshoory Law Group are versed in criminal law, and know what arguments and evidence will put you in the best possible situation. Attorneys are available 24/7. Contact our Los Angeles officetoday for an initial consultation.

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