An aggravated felony can lead to all kinds of U.S. immigration problems, from deportation and visa denials, to permanent bar from the country – but how does immigration law define an aggravated felony?
In immigration law, an aggravated felony is a very serious crime, which carries serious consequences. For example, aggravated felons are subject to removal (deportation) from the U.S. if they are here on a visa or a green card; they are not eligible to apply for asylum or the protections of the Convention Against Torture; they are not eligible for a defense to removal known as “cancellation of removal,” and once they’ve been convicted removed from the U.S., they are permanently inadmissible – that is, will never again be eligible for a U.S. visa or green card.
But what exactly is an aggravated felony? It’s impossible to tell by the name of a person’s conviction alone. The determination depends on how the crime (which most likely was prosecuted by a state court) matches up to federal immigration laws and court decisions. The result is that even some people who have been convicted of misdemeanors, or of crimes that did not have the word “felony” in it, have been found to have committed an aggravated felony.
Defining Aggravated Felony
The basic definition of aggravated felony is found in Section 101(a)(43) of the Immigration and Nationality Act (I.N.A.), or Section 1101(a)(43) of the U.S. Code. It lists the 21 types of crimes described below as aggravated felonies, which list very nearly makes it from A to Z! We’ll put a shortened version of what the actual statute says in bold below, followed by any relevant interpretations by the courts or immigration authorities.
(A) Murder, rape, or sexual abuse of a minor. Murder has been interpreted to include not only the various degrees of murder, but attempted murder. Rape similarly includes the various degrees of rape, whether it was forcible or by means of administering a drug or other intoxicant to the victim. Courts have disagreed on whether statutory rape (with a minor) constitutes an aggravated felony. Sexual abuse of a minor can include attempts, such as solicitations over the Internet.)
(B) Illicit trafficking in a controlled substance. This usually means illegal drugs, and it accounts for large numbers of deportations.
(C) Illicit trafficking in firearms (guns), destructive devices, or explosive materials.
(D) Money-laundering or engaging in monetary transactions in property derived from specific unlawful activity if the amount exceeded $10,000.
(E) Certain explosive materials or firearms offenses. This has been held to include a case of attempted arson.
(F) A crime of violence (not including a purely political offense) for which the term of imprisonment at least one year. “Crime of violence” has been interpreted to mean an with an element the use of physical force against another, or a felony that by its very nature involves a substantial risk that physical force against another person may be used.)
(G) Theft (including receipt of stolen property) or burglary if the term of imprisonment was at least one year.
(H) Kidnapping or making a demand for or receipt of ransom.
(I) Child pornography.
(J) Racketeering, or gambling if a sentence of one year imprisonment or more could have been imposed.
(K) Owning, controlling, managing, or supervising a prostitution business; transportation for the purpose of prostitution if committed for commercial advantage; or peonage, slavery, involuntary servitude, or trafficking in persons.
(L) Gathering or transmitting national defense information, disclosure of classified information, sabotage, treason, or compromising the identity of undercover intelligence agents.
(M) Fraud or deceit in which the loss to the victim or victims exceeds $10,000; or tax evasion in which the revenue loss to the government exceeds $10,000. For example, an alien who got involved in a scheme to buy stolen cars using bad checks and then resell them in another state was found removable under this section.
(N) Alien smuggling. There’s an exception for a first offense for which the alien has affirmatively shown the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other person).
(O) Illegally entering the U.S. after a previous deportation on the basis of an aggravated felony conviction.
(P) Falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument (document fraud) for which the term of imprisonment is at least 12 months. There’s an exception for the case of a first offense in which the alien has affirmatively shown that the offense was committed for the purpose of assisting, abetting, or aiding the alien’s spouse, child, or parent (and no other person) .
(Q) Failure to appear for service of sentence if the underlying offense is punishable by imprisonment for five years or more.
(R) Commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered, if the term of imprisonment is at least one year.
(S) Obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.
(T) Failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed.
(U) An attempt or conspiracy to commit an aggravated felony.
Any Crime Can Be Problematic
Does it sound like every crime qualifies as an aggravated felony? Indeed, this is an area where legislators and the courts have very little patience for people who are offered the right to a U.S. green card or visa and then abuse it, or bring harm to U.S. society. Even relatively minor crimes can cause problems getting a green card or U.S. citizenship.
Nevertheless, the case laws contain numerous situations where people have successfully proven that a crime they committed did not rise to the level of an aggravated felony. If you are an immigrant and are arrested for a crime, or placed in deportation proceedings based on a past crime,
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