Aggravated Felony – Immigration

If you have been convicted of an aggravated felony, you could be deported.  Being convicted of an aggravated felony (AF) has dire consequences under federal immigration laws. This made sense in the 1980s when the term referred only to murder, federal drug trafficking, and illicit trafficking of firearms and destructive devices.

Today, an AF need not be “aggravated” nor a “felony”.  It includes many nonviolent offenses which are comparatively minor.

However, on June 10, 2021, in Borden v. United States, the U.S. 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.

Examples of Aggravated Felonies

 

• Theft offense, including receipt of stolen property if the term of imprisonment is at least one year;
• Tax evasion in the case of where the loss to the government exceeds $10,000;
• Receipt of stolen property if the term of imprisonment is at least one year;
• Fraud or deceit offenses if the loss to the victim exceeds $10,000;
• Attempt to commit an aggravated felony;
• Counterfeiting – if the term of imprisonment is at least one year
• Offense related to alien smuggling (though some exceptions apply)

Client Reviews

Though the term “aggravated felony” comes from federal law, it must be applied to crimes under state laws. In some cases, state crimes that may sound negligible to most people, do not involve violence and are not felonies are nonetheless viewed as aggravated felonies by federal immigration authorities.

What are the Consequences of Being Convicted of an Aggravated Felony?

A conviction for an AF makes it difficult to receive any kind of immigration benefit such as a green card, naturalization, asylum, temporary worker status or even a visitor’s visa.

Deportation without a Removal Hearing Before an Immigration Judge

Immigrants with such an AF conviction have few legal protections. For example, a non-green card holder who is convicted of an AF may be administratively deported from the US without a hearing before an Immigration Judge.

Mandatory Detention

Immigration and Customs Enforcement (ICE) is required to detain any non-US citizen convicted of an AF upon release from criminal custody.

Ineligible for Asylum

Any non-U.S. citizen convicted of an AF is ineligible for asylum, even if he or she fears persecution if returned to his or her native country.

Ineligible for Cancellation of Removal

Any non-U.S. citizen convicted of an AF is ineligible for cancellation of removal which is a form of relief allowing Immigration Judges to allow persons to remain in the US.

Ineligible for Certain Waivers of Inadmissibility

Any non-US citizen who is convicted of an AF is inadmissible to the US. Persons in the US who have never had a green card may apply for a 212(h) waiver to excuse past criminal conduct, but only if they can show “extreme hardship” to a qualifying US citizen or lawful permanent resident relative.

Ineligible for Voluntary Departure

Non-US citizens convicted of an AF are ineligible for voluntarily departure. Instead, they will be ordered removed from the US.

Permanent Inadmissibility Following Removal from the United States

Anyone removed from the US after being convicted of an AF is permanently inadmissible, unless he or she receives a special waiver from the Department of Homeland Security (which is very rare).

Enhanced Penalties for Illegally Reentering the United States

Anyone removed from the US following a conviction for an AF, and who subsequently reenters the country illegally, may be imprisoned for up to 20 years.

This area of law is very complicated and it is advisable that you consult both an experienced immigration attorney and an experienced criminal defense attorney before pleading to any charges that may affect your immigration rights. The table below provides insight into what are considered aggravated felony convictions under federal immigration law.

 

Aggravated Felonies in the Immigration Context

Aggravated Felony	Citation
Murder, Rape, or Sexual Abuse of a Minor	INA 101(a)(43)(A)
Illicit Trafficking in Controlled Substance	INA 101(a)(43)(B)
Illicit Trafficking in Firearms or Destructive Devices	INA 101(a)(43)(C)
Money Laundering Offenses (over $10,000)	INA 101(a)(43)(D)
Explosive Materials and Firearms Offenses	INA 101(a)(43)(E)(i)–(iii)
Crime of Violence (imprisonment term of at least 1 yr)	INA 101(a)(43)(F)
Theft Offense (imprisonment term of at least 1 yr)	INA 101(a)(43)(G)
Demand for or Receipt of Ransom	INA 101(a)(43)(H)
Child Pornography Offense	INA 101(a)(43)(I)
Racketeering, Gambling (imprisonment term of at least 1 yr)	INA 101(a)(43)(J)
Prostitution Offenses (managing, transporting, trafficking)	INA 101(a)(43)(K)(i)–(iii)
Gathering or Transmitting Classified Information	INA 101(a)(43)(L)(i)–(iii)
Fraud or Deceit Offenses or Tax Evasion (over $10,000)	INA 101(a)(43)(M)(i), (ii)
Alien Smuggling	INA 101(a)(43)(N)
Illegal Entry or Reentry by Removed Aggravated Felon	INA 101(a)(43)(O)
Passport, Document Fraud (imprisonment term of at least 1 yr)	INA 101(a)(43)(P)
Failure to Appear Sentence (offense punishable by at least 5 yrs)	INA 101(a)(43)(Q)
Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles	INA 101(a)(43)(R)
Obstruction of Justice, Perjury, Bribery of Witness	INA 101(a)(43)(S)
Failure to Appear to Court (offense punishable by at least 2 yrs)	INA 101(a)(43)(T)
Attempt or Conspiracy to Commit an Aggravated Felony	INA 101(a)(43)(U)

 

Aggravated Felony Resources

• Supreme Court Limits the Crimes That Can Lead to Near-Automatic Deportation (6-14-21)
• Deportation Defense Guide
• Relief from Deportation (US Department of Justice)
• PRACTICE ALERT: Matter of Reyes, 28 I&N Dec. 52 (8-24-20)
• Controlled Substances (ILRC 2019)
• Aggravated Felonies: Practice Advisory (ILRC 2017)
• Aggravated Felonies: An Overview (American Immigration Council, 12-16-16)

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