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 it refers like a serious crime, it should. Any noncitizen convicted of an aggravated felony will lose the right to many types of immigration benefits.

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. If the person is already in the U.S. with a visa or green card, he or she will likely be ordered removed, as described in Crimes That Will Make an Immigrant Deportable.

And if the person somehow gets as far as submitting an application for U.S. citizenship, the aggravated felony conviction will result in not only denial of that application and permanently barred from U.S. citizenship, but in his or her being placed in removal proceedings. (See “Crimes That Will Prevent You From Receiving U.S. Citizenship.”

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)
  • 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.

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