Aggravated Felonies

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Aliens including US residents convicted of an aggravated felony are deportable and also ineligible for most deportation defenses. What is an aggravated felony?
 

Aggravated Felonies Under 8 USC 1101(a)(43)

 

(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" where a one year sentence was imposed

(G) theft (or receipt of stolen property) where a one year sentence was 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) pimping prostitutes; (ii) transport for prostitutes; (iii) slavery, or involuntary servitude

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

(M) an offense of: (i) fraud or deceit with loss to victim > $10,000; (iii) tax evasion with loss to government > $10,000

(N) alien smuggling (INA 274(a)) unless for immediate family member only

(O) any offense committed by an alien who was previously deported for an aggravated felony

(P) an offense (i) forging, counterfeiting, mutilating or altering a passport or document fraud; and (ii) where term of imprisonment is one year or more, except a first offense to aid immediate relative

(Q) offense of a defendant who fails to appear for sentence if the underlying offense is punishable by at least five years imprisonment

(R) commercial bribery, counterfeiting, forgery, trafficking in vehicles for the identification numbers of which have been altered and for where a one year sentence was imposed

(S) obstruction of justice, perjury, subornation of perjury, bribery of a witness where a one year sentence was 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 where a two year sentence may be imposed

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

What Forms of Relief Do Aggravated Felonies Bar?

Aliens including permanent residents who are convicted of an aggravated felony are ineligible for many types of benefits and defenses to deportation (removal).  An alien who is removed (deported) because of an aggravated felony may not return to the United States for the rest of his life.  An alien found in the United States after deportation for an aggravated felony has committed a felony subject to a maximum term of imprisonment of 20 years.  18 USC 1326(a).

An alien convicted of an aggravated felony is generally ineligible for the following forms of relief:

  • Asylum
  • Withholding of removal (upon judge's determination
    of "particularly serious crime")
  • Cancellation of removal for permanent residents
  • Cancellation of removal for non-permanent residents
  • Naturalization
  • Nonimmigrant visas

An aggravated felony conviction does not bar relief under the Convention Against Torture.  To prevail in a CAT claim, the alien must prove that it is more likely than not that he will suffer torture if removed to the country the court designated.  For more information on Convention Against Torture relief, please visit our Convention Against Torture page.

What Is a Conviction for Immigration Purposes?

Unfortunately, "convcition" under IIRIRA does not mean the same thing as the word "conviction" under many state laws.  Under IIRIRA, the term “conviction” means a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.  INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

Some courts have held that the mere imposition of court costs constitutes a penalty for the purpose of § 1101(a)(48)(A).  Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008).  But the Fourth Circuit Court of Appeals recently held that where an alien does not admit guilt in a criminal proceeding and a judge defers further proceedings and places the defendant on probation that the alien has not admitted facts justifying a finding of guilt and the court has not engaged in a judicial finding of facts justifying a finding of guilt. Crespo v. Holder, __ F.3d ___, No. 09-2214 (4th Cir. 2011).

Which Crimes Are Aggravated Felonies?

In 1997 President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  That law established the Congress' original list of aggravated felonies at 8 USC 1101(a)(43).  Department of Homeland Security and the courts have since expanded the number of crimes that constitute aggravated felonies, but the initial list enacted by Congress included:

See the list at left to view the original list of aggravated felonies listed under 8 USC 1101(a)(43).

Divisible Statutes: When a Statute Describes More than One Type of Conduct

Generally, when a criminal statute includes some crimes that may be crimes of moral turpitude and others that may not be, an alien convicted under the statute is not deportable for a moral turpitude crime unless the record of conviction demonstrates that the particular offense involved moral turpitude.  All possible crimes encompassed within a statutory provision must necessarily involve moral turpitude in order to find that a conviction under the statute is for a crime involving moral turpitude.  Hamden v. INS.
 

Read the Quick Reference Chart and Notes on the Immigration Consequences of Selected California Criminal Convictions -- Published by the Immigrant Legal Resource Center, Katherine Brady

 

 
 

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