What is an "aggravated felony?"

"AGGRAVATED FELONY" Defined

When is a criminal conviction considered serious?

§ 101(a)(43), of the Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1101(a)(43).

Introduction

Under the immigration laws, if an alien (lawful permanent resident, undocumented alien, nonimmigrant visitor, etc) has been convicted of a criminal offense, then he may be subjected to a proceeding to "revoke" his lawful permanent resident status, visitor visa, or other permit/visa, and be removed from the United States. If an alien is ordered deported, excluded, or removed from the United States he may not return for varying specified periods of time, without the filing of an Application to Reenter After Deportation/Removal.

If an alien has been convicted of a certain type of offense, it may constitute or be considered an "aggravated felony" under the immigration laws. It is important to note that although an offense may not have been considered "aggravated" under State law, it may still be considered "aggravated" under Federal law, pursuant to § 101(a)(43) of the Immigration & Nationality Act. See also, 8 U.S.C. § 1101(a)(43).

Under new amendments made to the Immigration & Nationality Act, a conviction for an "aggravated felony" has the following consequences:

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 may be denied entry into the United States, as being inadmissible
any alien may be declared ineligible for Political Asylum in the United States
any alien may be declared to have been convicted of a "particular serious crime" and be ineligible for Withholding of Removal
any alien removed as an "aggravated felon" may not return to the United States FOREVER, unless an alien files and receives an approval from the Attorney General to return. See above.

Hence, the consequences, therefore, of having been convicted of an "aggravated felony" are drastic. As such, the U.S. INS is constantly attempting to expand the scope and reach of the "aggravated felony" definition to deport and remove aliens from the United States. See e.g., Matter of Magallanes, Interim Decision 3341 (BIA 1997) (holding that a conviction for "driving under the influence" is a deportable offense and an "aggravated felony").

Application of "Aggravated Felony" Definition

The following types of categories have been defined by the U.S. Congress in determining what offenses are deemed to be aggravated felonies:

(A) murder, rape, or sexual abuse of a minor
(B) illicit trafficing 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 superivising 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, counterfeting, mutiliating 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.

The above listed definitions that may make a conviction an "aggravated felony" may apply to an offense whether it is in violation of Federal or State law, and may also apply to foreign convictions for which a term of imprisonment was completed within the last fifteen (15) years.

The Congress of the United States has declared that these new amendments and definitions shall apply to convictions entered "before, on, or after" September 30, 1996. Hence, although a conviction may have occurred twenty, thirty, forty, or even fifty years ago, an alien may now, suddenly, find himself facing deportation or removal from the United States for twenty years or forever!

For more information about whether a particular conviction may constitute an "aggravated felony", please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.