CRIMINAL AND IMMIGRATION CONSEQUENCES OF CRIMES OF VIOLENCE

 By Roman P. Mosqueda, Esq. 

            Crimes of violence such as murder, manslaughter, and assault and battery have criminal as well as immigration consequences to the alien defendants.

            Under Section 187 of the California Penal Code, murder is defined as the unlawful killing of a human being or a fetus, with malice aforethought, and is punished by death, imprisonment for life, or 25 years to life (murder in the first degree with use of weapon, torture, or premeditation, or committed with serious felonies); or imprisonment in state prison for 15 years to life (murder in the second degree referring to all other kinds of murder).

            Manslaughter is differentiated as the unlawful killing of a human being without malice, either voluntary (upon sudden quarrel or heat of passion) involuntary (without due caution and circumspection) or vehicular (while driving a vehicle with gross negligence) under Section 192 of the California Penal Code, and punished by imprisonment for 3, 6 or 11 years for voluntary manslaughter; imprisonment for 2, 3 or 4 years for involuntary manslaughter; and imprisonment for not more than one year, or in state prison for 2, 4 or 6 years, for vehicular manslaughter.

            Assault is defined by Section 240 of the California Penal Code, as an unlawful attempt, coupled with a present capacity, to commit a violent injury upon the person of another, and punished by a fine not exceeding $1,000, or by imprisonment not exceeding six months in county jail, or both.

            Lastly, battery is defined by Section 242 of the California Penal Code, as any willful and unlawful use of force or violence upon the person of another, and punished by a fine not exceeding $2,000 or by imprisonment not exceeding six months in county jail, or both. 

Crimes Against Persons As Crimes of Violence 

            The crimes of murder, manslaughter, and assault and battery are crimes of violence against persons.

            The victims are just witnesses of the prosecution in the case of the People of the State of California versus defendants. The prosecutor (District Attorney of the County, or the City Attorney, or the United States Attorney in a federal case) controls the prosecution, and has prosecutorial discretion whether to file the complaint, or reject the charge recommended by the police or investigators.

            In case the crime or offense is a “wobbler”, that is, the penal code provides for either a misdemeanor (imprisonment of not exceeding six months) or a felony (imprisonment for 16 months, or 2 or 3 years, in county jail or in state prison) penalty, the prosecutor has the discretion whether to file a misdemeanor or felony complaint.

            A first time offender, with favorable, pre-sentencing probation report from the Probation Department, may be eligible for probation (three or five years) with suspended sentence, and/or fine and penalty assessment and restitution to the victim. 

Immigration Consequences of Crimes of Violence: 

            Murder is classified as an aggravated felony by Section 101(a)(43)(A) of the Immigration and Nationality Act. It is also a crime against moral turpitude.

            The lesser crimes of manslaughter and assault and battery, as crimes of violence, become aggravated felonies, if the term of imprisonment imposed (regardless of suspension of imprisonment) is at least one (1) year, under Section 101(a)(43)(F) of the Act.

            Crimes of violence is defined by 18 U.S.C. § 16 as any offense that involves the use or attempted use of force against persons or property; or any other felony that involves a risk of use of force.

            So, an alien defendant convicted of a crime of violence for which the term of imprisonment imposed is at least one (1) year (sentenced to three hundred sixty five (365) days or more in jail) by guilty plea, with suspended sentence, and placed in five (5) year probation, would be  considered as having committed an aggravated felony.

            But assault and battery under the California Penal Code is not a felony (term of imprisonment which can be imposed is less than one (1) year).  So, conviction thereof does not make an alien guilty of an aggravated felony.

            An alien convicted of an aggravated felony is subject to removal, even though a lawful permanent resident, and is not eligible for cancellation of removal of certain permanent residents.

            The only reliefs available to such an alien convicted of an aggravated felony are withholding of removal, as well as, relief under the United Nations Convention Against Torture. The alien respondent in removal proceedings has to prove that, more likely than not, he/she would be persecuted (for withholding of removal) or tortured (for relief under the Convention Against Torture), if he/she were returned to his/her home country.

            An alien removed due to conviction of an aggravated felony is inadmissible to the United States for twenty (20) years  thereafter. See 8 U.S.C.A § 1182(a)(6)(B).

            If such an alien unlawfully returns to the United States before the twenty-year period, he/she is liable for a felony, with term of imprisonment of twenty (20) years. See 8 U.S.C.A § 1326(b)(2). 

            So, the moral of this article is that an alien lawful permanent resident should apply for United States citizenship upon eligibility to avoid being deported or removed.