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
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.
- 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