Noncitizens Convicted of Aggravated Felony: Defenses to Deportation

Aggravated felony convictions bar foreign nationals from most, but not all forms of immigration relief.

A noncitizen whose criminal record contains an aggravated felony – whether that person has a green card or other U.S. status, or is undocumented – is most likely headed for deportation (removal) from the United States. In fact, the proceedings may take place very quickly, on an “expedited” basis. (See Section 238 of the Immigration and Nationality Act or I.N.A.)

Aggravated felony convictions are treated very seriously under U.S. immigration law. This is despite the fact that some misdemeanors and nonviolent crimes can be considered aggravated felonies. Not only are aggravated felonies grounds for removal from the U.S., but they bar noncitizens from requesting most of the types of immigration relief open to other people in removal proceedings.

For example, with an aggravated felony, you cannot ask for asylum, cancellation of removal, or most of the types of waivers that would allow going forward with a separate application for status.

A few possibilities do remain, however, as described below. These should not be taken as a complete analysis of this very complex situation, but serve as an indication of what the noncitizen might want to discuss with an experienced immigration attorney.

A person convicted of an aggravated felony can apply for:

  • Withholding of removal, so long as the crime was not a “particularly serious” one committed while in the United States. This is judged, for withholding purposes, by whether the crime carried a prison sentence of at least five years. Withholding of removal stops the deportation of people whose life or freedom would be threatened if returned to their home country, or who would “more likely than not” face persecution there. (See the Immigration and Nationality Act at I.N.A. Section 241(B)(3).)
  • U.N. Convention Against Torture (CAT) protection. This stops the deportation of people who would more likely than not be subjected to torture if returned to their home country. The definition of torture is somewhat broader for CAT protection than in the asylum context. It includes any intentional, unlawful infliction of severe physical or mental suffering or pain, with the acquiescence of a public or government official, for purposes such as punishment, extracting a confession, intimidation, or discrimination.
  • A waiver under Section 212(h) of the I.N.A. (so long as the aggravated felony did not involve drugs or controlled substances and was not a violent or dangerous offense), based on extreme hardship to U.S. family members and eligibility for a family-based green card, in rare situations that are too complex to discuss here and vary among the various federal court circuits.
  • A “T” or “U” visa. These are available to victims of human trafficking or other serious crimes who cooperate with U.S. law enforcement authorities in investigating and prosecuting the crime. Both provide temporary status in the U.S. with the possibility of applying for a green card later.

For more information, and assistance in defending yourself in removal proceedings, definitely consult with an experienced immigration attorney.

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