UNDERSTANDING AGGRAVATED FELONIES IN U.S. IMMIGRATION LAW

Understanding the term “aggravated felony” is crucial within the context of U.S. immigration law, especially for non-citizens residing in the United States. “Aggravated felony” is a specialized legal concept used to classify certain types of offenses that carry significant legal repercussions that can dramatically alter an individual’s immigration status, leading to severe consequences such as deportation and bars to re-entry. Originally defined by law in 1988 and expanded in subsequent years, the definition of an aggravated felony has grown to encompass a wide range of criminal offenses, from violent crimes to misdemeanors under certain circumstances.

Under federal law, aggravated felonies are defined as a specific set of crimes, which can include both violent offenses such as murder, rape, and kidnapping, as well as non-violent offenses. Please note; a crime does not necessarily need to be classified as a felony or involve violence to be considered an aggravated felony. Congress has the authority to designate certain crimes as aggravated felonies, and this definition can change over time. As a result, even seemingly minor drug offenses or white-collar crimes can be categorized as aggravated felonies under federal law.

DEFINITION OF AGGRAVATED FELONY IN IMMIGRATION LAW

The Immigration and Nationality Act (INA) defines an “aggravated felony” in section 101(a)(43). This definition includes a broad spectrum of crimes, such as murder, rape, drug trafficking, and various forms of fraud and theft, provided these offenses meet certain criteria, like minimum sentence lengths. Over the years, the list of offenses categorized under this designation has expanded, making it a pivotal aspect of immigration law that significantly influences an individual’s ability to remain in the U.S.

The list of aggravated felonies is provided in section 8 U.S. Code 1101(a)(43). These offenses can be categorized into three groups:

• Crimes that are always considered aggravated felonies, regardless of the sentence or loss to the victim. Examples in this category include child pornography, drug trafficking, human trafficking, kidnapping, rape, and treason.
• Crimes that are classified as aggravated felonies if the offender receives a sentence of one year or longer. This category includes offenses like bribery, burglary, counterfeiting, forgery, perjury, racketeering, and theft.
• Crimes that are regarded as aggravated felonies if the victim’s loss exceeds $10,000. Examples of such offenses are fraud, money laundering, and tax evasion.

These categories define the classification of various offenses as aggravated felonies under U.S. immigration law.

DISTINGUISHING BETWEEN INADMISSIBILITY AND REMOVABILITY

In U.S. immigration law, the concepts of inadmissibility and removability are critical, especially when discussing aggravated felonies. Although they may seem similar, each pertains to different aspects of immigration status and control. Understanding the distinction between these two statuses is essential for any non-citizen facing legal challenges, particularly when an aggravated felony might be involved.

INADMISSIBILITY

Inadmissibility refers to the conditions under which a non-citizen can be denied entry to the United States or denied adjustment of status (conversion from a non-immigrant to an immigrant or lawful permanent resident status). This can occur at any port of entry or through the adjustment of status process within the United States. The grounds for inadmissibility are set forth in Section 212(a) of the Immigration and Nationality Act (INA) and cover a broad range of criteria including health-related issues, prior criminal convictions, security risks, and public charge concerns.

Key Points Regarding Aggravated Felonies and Inadmissibility:

• An aggravated felony conviction can render a non-citizen inadmissible if they seek re-entry into the U.S. after travel, attempt to adjust their status, or are applying for an initial entry.
• Even if a non-citizen has not left the United States, the mere existence of an aggravated felony record can impede their ability to adjust to a lawful permanent resident status.

REMOVABILITY

Removability describes conditions under which a non-citizen, who is already in the United States, can be removed or deported. The grounds for removability are outlined in Section 237 of the INA and include violations such as overstaying a visa, failure to abide by the terms of admission, and committing certain crimes, including aggravated felonies.

Key Points Regarding Aggravated Felonies and Removability:

• Any non-citizen, including lawful permanent residents, can be deemed removable from the U.S. if convicted of an aggravated felony after their admission.
• The nature of the aggravated felony can sometimes dictate the severity of the removal proceedings and the limited relief available to the individual facing deportation.

DIFFERING BURDENS OF PROOF

Another important aspect in distinguishing between inadmissibility and removability is the burden of proof. In proceedings for inadmissibility, the burden is typically on the non-citizen to prove that they should be allowed to enter or remain in the United States. Conversely, in removal proceedings, the government must prove that the non-citizen is removable based on their actions or status.

WHAT CONSTITUTES A CONVICTION?

The Immigration and Nationality Act (INA) defines a conviction as a formal judgment of guilt entered by a court. This can also apply in cases where adjudication of guilt has been withheld, provided that:

• The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty.
• The individual has entered a plea of guilty or nolo contendere (no contest), or has admitted sufficient facts to warrant a finding of guilt.

This broad definition means that even some cases that are not considered convictions under some state laws may still count as convictions for immigration purposes. For example, an expunged conviction or a deferred adjudication may not remove the immigration consequences of that conviction.

POTENTIAL CONSEQUENCES OF BEING CONVICTED OF AN “AGGRAVATED FELONY”

The impact of a conviction on immigration status can vary depending on whether the conviction is final, reversed, or vacated:

• Final Convictions: These are fully adjudicated cases where all appeals have been exhausted or the time to appeal has expired, solidifying the conviction’s effect on immigration status.
• Reversed Convictions: If a conviction is reversed on appeal based on a substantive issue of law or fact, it generally no longer carries negative immigration consequences. However, the case may be retried, potentially leading to a new conviction.
• Vacated Convictions: A vacated conviction can remove the immigration penalties associated with the original conviction, particularly if it is vacated for reasons related to the merits of the case (e.g., procedural errors, constitutional violations). Convictions vacated for rehabilitative reasons or to avoid immigration consequences often do not eliminate the immigration repercussions.

Non-citizens convicted of an “aggravated felony” face several consequences and reduced legal protections. Specifically:

• Deportation without a Removal Hearing: Noncitizens who are convicted of an aggravated felony and are not lawful permanent residents may be administratively deported without a formal hearing before an Immigration Judge. They are not eligible for asylum or any other discretionary relief, and they cannot appeal to the Board of Immigration Appeals.
• Mandatory Unreviewable Detention: Upon release from criminal custody, federal immigration authorities are required to detain any immigrant convicted of an aggravated felony. Lawful permanent residents detained following a conviction of a potential aggravated felony must demonstrate that the crime does not qualify as an aggravated felony to obtain bond from an immigration judge.
• Ineligibility for Asylum: Immigrants convicted of an aggravated felony are ineligible for asylum, which is a form of immigration relief for those who have suffered or fear persecution in their home country.
• Ineligibility for Cancellation of Removal: Immigrants convicted of an aggravated felony are ineligible for cancellation of removal, a form of relief that allows deportable immigrants to remain in the United States, regardless of exceptional and extremely unusual hardship to immediate family members who are U.S. citizens or lawful permanent residents.
• Ineligibility for Certain Waivers of Inadmissibility: Lawful permanent residents convicted of an aggravated felony may not obtain a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act.
• Ineligibility for Voluntary Departure: Immigrants convicted of an aggravated felony are ineligible for voluntary departure, which allows otherwise deportable immigrants to leave the country at their own expense instead of formal deportation.
• Permanent Inadmissibility Following Departure: Immigrants removed from the United States or who leave while an order of removal is outstanding after being convicted of an aggravated felony are permanently inadmissible. They would need a rare special waiver from the Department of Homeland Security to lawfully reenter the United States.
• Enhanced Penalties for Illegal Reentry: Immigrants who are removed from the United States for an aggravated felony conviction and subsequently reenter the country illegally may face imprisonment for up to 20 years, rather than the usual two years.

These consequences highlight the severe impact that an aggravated felony conviction can have on a noncitizen’s immigration status and future prospects in the United States.

HOW SENTENCES ARE EVALUATED UNDER IMMIGRATION LAW

For immigration law purposes, the sentence imposed is often more critical than the sentence actually served. This distinction can have profound effects on how certain crimes are classified:

• One-Year Sentence Rule: Many crimes are elevated to aggravated felony status based on the sentence length. For instance, theft offenses and crimes of violence become aggravated felonies when the sentence imposed is at least one year. It doesn’t matter whether the sentence is fully served; the imposition alone can trigger the classification.
• Suspended Sentences: In immigration law, even suspended sentences are considered when determining aggravated felony status. If a court imposes a sentence but suspends the execution, the full length of the imposed sentence still counts for the purpose of aggravated felony determination.

RECIDIVIST ENHANCEMENTS

Recidivism, or the tendency to reoffend, can also affect how sentences are viewed in immigration contexts. Enhanced sentences due to prior offenses can push a non-citizen into aggravated felony territory:

• Impact of Recidivist Sentencing: When previous convictions lead to enhanced sentences for new offenses, these enhanced sentences can be considered in determining whether an offense qualifies as an aggravated felony. For example, a minor theft offense might typically carry a minor penalty, but repeated offenses could result in a longer sentence that qualifies the crime as an aggravated felony.

MISDEMEANORS AND WOBBLERS

Even offenses typically classified as misdemeanors or “wobblers” (crimes that could be charged either as misdemeanors or felonies) can be scrutinized under aggravated felony criteria based on the sentence imposed:

• Misdemeanors: Some misdemeanors might escalate to aggravated felonies if the sentence, especially in combination with other misdemeanor convictions, reaches a certain threshold.
• Wobblers: These are particularly significant because the nature of the charge can shift based on sentencing decisions, potentially reclassifying a lesser charge into an aggravated felony due to the imposed sentence.

EXAMPLES OF AGGRAVATED FELONIES

Aggravated felonies encompass various serious offenses, including, but not limited to:

• Murder, rape, or sexual abuse of a minor
• A crime of violence, excluding purely political offenses if imprisonment exceeds one year
• Trafficking of controlled substances, firearms, destructive devices, or explosive materials
• Money laundering involving amounts exceeding $10,000
• Offenses involving explosives, firearms, theft, burglary, child pornography, human trafficking, and commercial bribery, among others
• As well as attempts or conspiracies to commit such offenses.

Additionally, other crimes that may lead to removal, deportation, exclusion, denial of naturalization, or other severe immigration consequences include, but are not limited to:

• Crimes of moral turpitude
• Controlled substance offenses
• Firearm or destructive device offenses
• Domestic violence, stalking, or child abuse offenses
• Violation of a protective order
• Human trafficking offenses
• Multiple criminal convictions with an aggregate sentence of five years or more
• Prostitution offenses
• “Serious criminal offenses,” encompassing felonies, crimes of violence, reckless driving, or DUI with injury.

These extensive lists highlight the serious nature of the offenses that can lead to severe immigration consequences and potential deportation.

ELIGIBILITY FOR RELIEF DESPITE CRIMINAL CONVICTIONS

Despite criminal convictions, some individuals in removal proceedings may still be eligible for certain types of relief or protection. However, eligibility for relief can be barred by criminal convictions or conduct, even if they are not charged as grounds for removal or inadmissibility. Relief options discussed in this outline include cancellation of removal, suspension of deportation, NACARA suspension or cancellation relief, Cuban Adjustment Act Relief, former 212(c) relief, Section 212(h) relief, adjustment of status, registry, asylum, withholding of removal, CAT relief, and naturalization. Additionally, other sections of this outline cover the impact of criminal convictions on relief eligibility, specific to each form of relief.

SPEAK WITH CRIMINAL DEFENSE LAWYER FROM TABIBNIA LAW FIRM

According to the Supreme Court, immigrants convicted of an “aggravated felony” face the most severe deportation consequences. As Congress considers expanding the definition of “aggravated felony” to include more crimes, it must take into account the extremely harsh repercussions that will follow. The current immigration laws already have provisions that make noncitizens with certain criminal histories, even for minor convictions, eligible for deportation. However, once a crime is labeled an “aggravated felony,” deportation is nearly guaranteed, regardless of the potential harm or evidence of rehabilitation.

It is crucial to consult with an experienced Los Angeles criminal defense attorney like Cyrus Tabibnia from Tabibnia Law Firm to navigate through the complexities of aggravated felony charges and develop a strong defense strategy tailored to your specific circumstances. Call 866-713-2159

Sources:

• Americanimmigrationcouncil.org
• Aggravated Felony According to U.S. Immigration Law
• ilrc.org
• Aggravated felony