• Aggravated Felony
  • March 10, 2017 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • What is an Aggravated Felony in U.S. Immigration Law?

    Section 101(a)(43) of the Immigration and Nationality Act (INA) defines “aggravated felonies” in immigration law. Each of the aggravated felony provisions describes a crime or crimes in broad terms. The following is a list of the immigration aggravated felonies found in section 101(a)(43) (list courtesy of 12 USCIS-PM F.4(B):

    A. Murder, Rape, or Sexual Abuse of a Minor
    B. Illicit Trafficking in Controlled Substance
    C. Illicit Trafficking in Firearms or Destructive Devices
    D. Money Laundering Offenses (over $10,000)
    E. Explosive Materials and Firearms Offenses
    F. Crime of Violence (imprisonment term of at least one year)
    G. Theft Offense (imprisonment term of at least one year)
    H. Demand for or Receipt of Ransom
    I. Child Pornography Offense
    J. Racketeering, Gambling (imprisonment term of at least one year)
    K. Prostitution Offense (managing, transporting, trafficking)
    L. Gathering or Transmitting Classified Information
    M. Fraud or Deceit Offenses or Tax Evasion (over $10,000)
    N. Alien Smuggling
    O. Illegal Entry or Reentry by Removed Aggravated Felon
    P. Passport Document Fraud (imprisonment term of at least one year)
    Q. Failure to Appear Sentence (offense punishable by at least five years)
    R. Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles
    S. Obstruction of Justice, Perjury, Bribery of Witness
    T. Failure to Appear to Court (offense punishable by at least two years)
    U. Attempt or Conspiracy to Commit an Aggravated Felony

    This is a list of the titles of all immigration aggravated felony provisions. The statute contains more details regarding what constitutes an aggravated felony offense in each of the above provisions.

    When is a Conviction for an Immigration Aggravated Felony?

    Each of the immigration aggravated felony provisions in section 101(a)(43) of the INA has specific set of criteria for what is required for an offense to constitute an aggravated felony. Furthermore, many of the aggravated felony provisions have been litigated extensively in both administrative and judicial settings. The language of the statutes, administrative guidance, and administrative and judicial precedent combine to set forth general rules for when a conviction or offense constitutes an immigration aggravated felony.

    Many immigration aggravated felonies stem from state criminal convictions. This adds a complicated element to determining whether a conviction is for an aggravated felony. In many cases, whether a conviction is for an aggravated felony will depend exclusively on the language of the statute of conviction. Courts and adjudicators may in some cases also be permitted to look at the specific conduct that led to the conviction. The correct approach in a specific case will always depend on the language of the statute of conviction, the relevant aggravated felony provision, and pertinent case-law on the issue.

    Consequences of an Aggravated Felony Conviction

    The consequences for an alien who is found to have committed an aggravated felony are severe.

    An alien who has at any time been convicted of an aggravated felony will be ineligible for a waiver of inadmissibility under section 212(h) of the INA.

    An alien who is convicted of an aggravated felony at any time after admission will be deportable under section 237(a)(2)(A)(iii) of the INA. If a non-LPR is found to be removable for an aggravated felony, he or she will be subject to administrative removal under section 238(b) without a hearing before an immigration judge. An aggravated felony conviction will render an alien ineligible for cancellation of removal. Aliens convicted of aggravated felonies are also ineligible for voluntary departure.

    With very limited exceptions, an alien who is removed after having committed an aggravated felony will be permanently inadmissible to the United States under section 212(a)(9) of the INA. Under section 276(b)(2), an alien who was removed after having committed an aggravated felony and who enters, attempts to enter, or is found in the United States without legal authorization may face up to 20 years in prison, a fine, or both.

    Under section 208(b)(2)(A)(ii) of the INA, an alien convicted of an aggravated felony will generally be ineligible for asylum.

    Finally, an aggravated felony conviction after November 29, 1990, constitutes a permanent bar to good moral character. The establishment of good moral character is a requirement for naturalization, as well as for cancellation of removal.

    Guidance Relating to Aggravated Felonies

    Being found to have committed an aggravated felony will subject an alien to removal, and it will often be fatal to his or her future immigration prospects.

    If an alien is charged with having committed an aggravated felony, it is essential for him or her to retain an experienced immigration attorney. In certain cases, there may be grounds to contend that the conviction was not for an aggravated felony in proceedings.

    Determining whether a conviction is for an aggravated felony is often a complicated process. If an alien is charged with any criminal offense, he or she should consult with an experienced immigration attorney to understand the potential immigration consequences of different case outcomes. Having this understanding may help guide the alien’s criminal defense strategy.

    An alien who was removed for an aggravated felony may consult with an experienced immigration attorney for guidance on the very limited exceptions available for that situation.