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

Even some relatively minor crimes may come in for harsh treatment by the immigration system if they match the description of aggravated felony.

If the term “aggravated felony” sounds ominous, it should. Any non-citizen convicted of an aggravated felony will lose the right to access many types of immigration benefits. However, an “aggravated felony” is a term of art, in which the underlying crime need neither be “aggravated” nor even a “felony.” Aggravated felonies can be confusing for non-citizens; however, the consequences for being charged with an aggravated felony are wide-ranging and severe.

Major Consequences of Aggravated Felony Conviction for Non-Citizens

Among other things, the person will become ineligible to receive asylum, as described in Bars to Receiving Asylum or Refugee Status. He or she 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. A person who is 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 proceedings, the options will be severely curtailed. After being convicted of an aggravated felony, an immigrant will be ineligible for cancellation of removal, voluntary departure, or certain waivers of inadmissibility.

After deportation, the person will be permanently inadmissible to the United States. One who does try to return could face a federal prison sentence of up to 20 years.

Or, if the person somehow manages to avoid deportation and get as far as submitting an application for 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 in removal proceedings after all. (See Crimes That Will Prevent You From Receiving U.S. Citizenship.)

Origin of Aggravated Felony Definition

The difficulty with the term “aggravated felony” is that it comes from federal law, yet must be applied to crimes that were most likely prosecuted under a state law, or even the law of another country. There’s a sort of 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 his or her record could, in fact, be told by U.S. immigration authorities that the crime was an aggravated felony. This is most likely to happen when the conduct described in the criminal statute meets the definition of an aggravated felony offense and is punishable by more than one year in prison.

To view the description of 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 or violent crime with a 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, perjury, or bribery of a witness, if the term of imprisonment was at least one year.

This is not a complete list of potential aggravated felonies, and you should not attempt to evaluate your or anyone’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.

As you might guess, a lot of cases concerning whether a particular crime qualifies as an aggravated felony become the center of much 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 before accepting a plea deal, to avoid possible aggravated felony charges.

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