What is An Aggravated Felony

The consequences of a conviction of an “aggravated felony” by a non citizen are serious. Under the Immigration & Nationality Act, Many crimes are considered “aggravated felonies.” Consequences include, among others, deportation and a permanent ban on becoming a U.S. citizen.

Aggravated Felonies Under the Immigration & Nationality Act

For immigration matters, the term “aggravated felony” comes from  Federal law. However, most criminal convictions are under state law. An offense that is not “aggravated” under State law, may be “aggravated” under Federal law. To determine if a person will suffer the immigration consequences of an “aggravated “felony” conviction, the state criminal statute under which the person was convicted must be compared to the definition of “aggravated felony.”

Section 101(a)(43) of the Immigration & Nationality Act defines “aggravated felony.”

(A) murder, rape, or sexual abuse of a minor

(B) illicit trafficking in a controlled substance

(C) illicit trafficking in firearms or destructive devices

(D) offenses relating to “money laundering”

(E) offenses relating to explosive materials

(F) “crimes of violence” for which a term of imprisonment of one (1) year has been imposed

(G) a theft offense (including receipt of stolen property) for which a term of imprisonment of one (1) year has been imposed

(H) offenses relating to ransom or demand for receipt of ransom

(I) offense relating to child pornography

(J) offenses relating to influenced corrupt organizations, or gambling

(K) offenses relating to: (i) owning, controlling, managing, or supervising prostitution; (ii) to transportation for the purpose of prostitution; (iii) slavery, and/or involuntary servitude

(L) offenses relating to: (i) gathering or transmitting national defense information; disclosure of classified information; sabotage; treason; (ii) protecting identity of intelligence agents; (iii) protecting identity of undercover agents

(M) an offense that involves: (i) fraud or deceit in which loss to victim exceeds $10,000; (iii) a relation to Tax Evasion in which loss to government exceeds $10,000

(N) an offense relating to alien smuggling as defined in section 274(a) of the Act, unless committed for an immediate family member and no other individual

(O) offense committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph (e.g., alien previously deported as an “aggravated felony” is automatically considered to be an “aggravated felon”)

(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating or altering a passport or instrument or relating to document fraud; and (ii) term of imprisonment is at least 12 months, except in first offense where offense committed to aid immediate relative

(Q) an offense relating to a failure to appear for a defendant for service of sentence if the underlying offense is punishable by imprisonment for at least five (5) years or more

(R) an offense relating to commercial bribery, counterfeiting, or forgery, or trafficking in vehicles for the identification numbers of which have been altered and for which a term of imprisonment of one (1) year has been imposed

(S) an offense relating to obstruction of justice, perjury, subornation of perjury, bribery of a witness for which a term of imprisonment of one (1) year has been imposed

(T) offense relating to failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of two (2) years may be imposed

(U) an attempt or conspiracy to commit any of the above offenses.

Analyzing the state conviction under the federal law can be very complicated. Each of the aggravated felonies have their own elements. A lawyer’s analysis must consider of each element of the federal definition is met by the state conviction, including a sufficient mens rea.

Conquences of Aggravated Felonies Under the Immigration & Nationality Act

If an alien has been convicted of a crime which under the immigration law is an “aggravated felony”, the immigration consequences are:

  • A lawful permanent resident is ineligible for Cancellation of Removal (e.g., pardon for criminal conviction)
  • An undocumented alien is ineligible for Cancellation of Removal (e.g., application based upon extreme hardship)
  • A lawful permanent resident may be ineligible for Naturalization, permanently
  • A nonimmigrant visitor oe an applicant for other non immigrant visa may be denied entry into the United States, as being inadmissible
  • Any alien becomes ineligible for Political Asylum in the United States
  • Any alien be ineligible for Withholding of Removal due to having  been convicted of a “particular serious crime” and
  • Any alien removed as an “aggravated felon” may not return to the United States unless an alien files and receives an approval from the Attorney General to return after 20 years.

Non-citizens, including a lawful permanent residents (green card holders) convicted of an aggravated felony have little chance of fighting deportation. A person who have been convicted of crimes involving moral turpitude or drugs are ineligible to apply for asylum. If the person is already in the United States with a green card, he may be subjected to a proceeding to “revoke” his lawful permanent resident status and remove him from the United States. If he is in the United States with a visitor’s visa, or other permit/visa, his status may be revoked followed by his removal from the United States.