Burglary is a serious criminal offense in the State of New York. Depending upon the severity of the charge, the punishment can lead to a sentence of up to twenty-five years in prison.
A conviction for Burglary can also have severe immigration consequences because convictions under some sections are Crimes Involving Moral Turpitude while others are Aggravated Felonies.
My office recently represented a client in which the client was convicted of Burglary in the Third Degree (NY PL 140.20) and was sentenced to three years in prison. He was very concerned about being away from his family for that long, but even more so by the prospect of being deported and permanently barred from entering the United States. That may seem like an extremely harsh penalty in addition to three years in prison, but the immigration laws of the United States call for that outcome in cases that are deemed Aggravated Felonies or in some cases Crimes Involving Moral Turpitude (CIMTs).
The Department of Homeland Security served my client with a Notice to Appear, which is the government's way of saying we want to deport you after affording you an opportunity to defend yourself. We then had a hearing that is like an arraignment in criminal court. The government charged my client with being deportable because he had convicted of an Aggravated Felony.
What constitutes an Aggravated felony is spelled out by the Immigration and Nationality Act (INA) 101(a)(43). The list is pretty extensive and includes burglary offenses. However, not all burglary offenses are equal when it comes to aggravated felonies. The State burglary offense has to match the Federal equivalent in order to be considered an aggravated Felony. In our opinion, New York's Burglary in the Third Degree did not match the Federal statute
The issue has been litigated, and in 2017 the Board of Immigration Appeals (BIA), found that New York State’s burglary in the Third Degree is not an Aggravated Felony. Fortunately, my Motion to Terminate the case based on that underlying case was granted and removal proceedings were terminated.
Criminal matters can have severe consequences for immigrants. Each case is unique and the same conviction under a different set of facts may have a very different outcome. That is why it is important to seek competent counsel to advise you of your right if you are arrested.
For more information on Removal (Deportation) Proceedings such as other grounds for removal, and the various legal defenses you can use to fight such proceedings, click here.