What's an Aggravated Felony According to U.S. Immigration Law?

If the term "aggravated felony" sounds ominous, it should. Any non-citizen who is convicted of an aggravated felony will, whether they already have a U.S. nonimmigrant visa or green cards or no status at all, lose the right to keep these or to access many other types of immigration benefits. However, an "aggravated felony" is a legal term, in which the underlying crime need neither be "aggravated" nor even a "felony."

Understanding what constitutes an aggravated felonies can be confusing for non-citizens (as well as lawyers, in some situations). But what's clear is that the consequences for being charged with an aggravated felony are wide-ranging and severe for any foreign national. Below, we'll discuss both the:

• aggravated felony definition, and
• the immigration and related consequences of being convicted of a crime that matches the definition of an aggravated felony.

Major Consequences of Aggravated Felony Conviction for Non-Citizens in Removal or Deportation Proceedings

Among other concerns, foreign nationals convicted of aggravated felonies face the following consequences:

• They become ineligible to receive asylum, as described in Bars to Receiving Asylum or Refugee Status.
• They will likely also lose eligibility for a U.S. visa or green card, as described in Crimes That Make U.S. Visa or Green Card Applicants Inadmissible.
• People who are already in the U.S. with a visa or green card will likely be placed in removal proceedings, as described in Crimes That Will Make an Immigrant Deportable.

For a non-citizen placed in removal (deportation) proceedings, the options for relief (that is, to put forward a defense that might allow them to stay in the United States or at least to minimize the damage to their immigration record) will be severely curtailed. After being convicted of an aggravated felony, foreign nationals become ineligible for cancellation of removal (also known as the "ten-year green card"), voluntary departure (meaning the foreigner leaves the U.S. on their own but avoids a time bar on when they can return to the United States), or certain waivers of inadmissibility.

Or, if the person somehow manages to avoid deportation and get as far as submitting an application for naturalized U.S. citizenship, the aggravated felony conviction will result in not only denial of that application and being permanently barred from U.S. citizenship, but in being placed into removal proceedings after all. (See Crimes That Will Prevent You From Receiving U.S. Citizenship.)

Post-Deportation Limits on Returning to the U.S. for Aggravated Felons

After being deported, someone with an aggravated felony on record is considered permanently inadmissible to the United States. In other words, even if they become separately eligible for some sort of visa or green card, such as by obtaining a U.S. job offer or marrying a U.S. citizen, it won't matter. Their application will be denied.

A foreign national who does try to return to the United States, such as by crossing the border unlawfully, could face a federal prison sentence of up to 20 years.

Why It's Tough to Figure Out Whether Some Crimes Match the Aggravated Felony Definition

The difficulty with the term "aggravated felony" is that it comes from federal law, yet it must be applied to crimes that were most likely prosecuted under a state law, or even the law of another country. For example, someone convicted in New York State of a misdemeanor sale of marijuana could, under the federal statute, but considered an aggravated felon.

Foreign nationals are face with what seems like a mismatch, in which non-federal crimes that might sound minor to most people, perhaps which did not involve violence, and might not even be called felonies in the applicable statute are nevertheless viewed as aggravated felonies by federal immigration authorities.

A person with a misdemeanor on record is most likely to be told by U.S. immigration authorities that a crime is an aggravated felony when the conduct described in the criminal statute is punishable by at least one year in prison.

Specific Crimes That U.S. Immigration Law Names as Aggravated Felonies

To view the description of specific crimes that are considered aggravated felonies under immigration law, go to the Immigration and Nationality Act at I.N.A. § 101(a)(45). This list includes, in brief summary:

• murder
• rape
• sexual abuse of a minor (which can include statutory rape)
• simple battery
• drug trafficking
• trafficking in firearms or destructive devices
• various other offenses concerning firearms or explosive materials
• racketeering
• money laundering of more than $10,000
• fraud or tax evasion involving more than $10,000
• theft with a prison sentence order of at least one year
• perjury with a sentence of at least one year
• kidnapping
• child pornography
• trafficking in persons or running a prostitution business
• spying, treason, or sabotage
• commercial bribery, counterfeiting, forgery, or trafficking in vehicles
• failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
• alien smuggling, and
• obstruction of justice (such as retaliating against a witness or interfering with an investigation), perjury, or bribery of a witness, if the term of imprisonment was at least one year, and
• any violent crime with a sentence order of at least one year.

(For a relatively recent discussion of obstruction of justice, see the Supreme Court case of Pugin v. Garland (2023).)

This is not a complete list of potential aggravated felonies, and you should not attempt to evaluate your or anyone else's situation based upon it. In fact, U.S. courts have held that a crime that is not on this list can nevertheless be deemed an aggravated felony.

Consult an Immigration Attorney

As you might guess, a lot of cases concerning whether a particular crime qualifies as an aggravated felony become the center of much legal argument, leading to many court appeals. Consult an immigration lawyer for a full analysis. And if you find yourself in criminal proceedings, make sure to contact an immigration attorney as well as a defense attorney early on. Definitely do so before accepting a plea deal, so as to avoid possible aggravated felony charges.