The Supreme Court Limits the Crimes That Can Lead to Near-Automatic Deportation
Posted by Emma Winger | Jun 14, 2021 | Immigration 101, Immigration and Crime
The Supreme Court issued a decision last Thursday in a criminal case that will have an immediate impact on immigration law. The new decision set a limit on the types of crime that can be considered an “aggravated felony” ground for deportation.
In Borden v. United States, a divided Supreme Court held that only crimes which require the perpetrator to have either (a) an intent to use violence against a person or (b) knowledge that they will subject a person to violent force can be considered a “violent felony” under the Armed Career Criminal Act. A person with three or more prior violent felony convictions may receive a much longer criminal sentence for certain federal crimes. A crime that can be committed by only “reckless” behavior is not enough.
“Reckless” is a legal term that most commonly means when a person “consciously disregards a substantial and unjustifiable risk.” One example of reckless behavior is driving a car too fast through a busy neighborhood to get to work on time. The driver does not intend to hurt anyone and does not know for certain that they will hurt someone. Instead, the driver acts without thinking about the serious potential consequences.
The Borden decision matters for immigration law because the “violent felony” definition is nearly identical to the definition of “crime of violence” in immigration law. A “crime of violence” is one of many types of aggravated felonies that make a person deportable.
The term “aggravated felony” is misleading because it includes a wide range of offenses, many of which are neither aggravated nor felonies. Even so, a conviction for an aggravated felony not only makes a noncitizen deportable, but it also bars noncitizens from most defenses to deportation.
This means that if a noncitizen has an aggravated felony conviction, in most cases an immigration judge must order the person deported, regardless of how long the person has lived in the United States, whether they have close family in the United States and deep ties to the community, or whether they have rehabilitated.
With Borden, the Supreme Court put an important limit on the broad “crime of violence” aggravated felony definition. The Court’s decisions focused on two key words in the definition of “violent felony” that is nearly identical to the “crime of violence” definition. A crime of violence is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” A “violent felony” has the same definition except that it does not include property.
Justice Kagan, joined by Justice Breyer, Justice Sotomayor, and Justice Gorsuch, wrote that use of force “against” a person requires that the perpetrator target another person. Justice Thomas provided the fifth vote. He wrote that “use” of physical force requires that the perpetrator intentionally act to cause harm.
These decisions make sense. As Justice Kagan explained, “violent felony” and “crime of violence” are supposed to be limited to the most serious types of offenses. This is especially true given the devastating immigration consequences of having an aggravated felony conviction. FILED UNDER: Supreme Court
