What is an "Aggravated Felony" for Immigration Purposes?

Jeffrey Dean Joseph

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a) Aggravated Felonies - INA § 237(a)(2)(A)(iii) &INA § 101(a)(43)

Any alien who is convicted of an aggravated felony at any time after admission is removable.

i) Aggravated felonies for immigration purposes are enumerated at INA section 101(a)(43); 8 U.S.C. § 1101(a)(43).

ii) Crime does not have to be a felony. Misdemeanors,and some municipal or petty offenses can be aggravated felonies. United States v. Saenz-Mendoza, 287 F.3d 1011 (10th Cir. 2002), cert. denied Saenz-Mendoza v. United States, 123 S.Ct. 315 (2002) (“offense need not be classified as a felony to qualify as an aggravated felony").

iii) Aggravated felonies are significant in that they render a non-citizen deportable from this country,and in almost all cases they preclude most forms of relief from deportation. Even long-term lawful permanent residents are for the most part ineligible for relief from deportation with an aggravated felony conviction.

iv) Deportable if committed anytime after admission. INA § 237(a)(2)(A)(iii); 8 U.S.C. § 1227(a)(2)(A)(iii),regardless of when the conviction enters. United States v. Soto-Ornelas, 312 F.3d 1167 (10th Cir. 2002), cert. denied Soto-Ornelas v. United States, 123 S.Ct. 1813 (2003); Matter of Truong, 22 I&N Dec. 1090 (BIA 1999).

v) Although aggravated felonies are grounds of deportation,they are not grounds of inadmissibility unless otherwise classified so as to render the crime a ground of inadmissibility. An example of this scenario: a theft crime with a one year sentence would not be an inadmissible offense as an aggravated felony,but could be classified as a crime involving moral turpitude which would render the offense an inadmissible offense.

vi) Inchoate offenses qualify if they are preparatory in nature. (Attempt,solicitation,facilitation,accessory before the fact,aiding and abetting). Conspiracies take on the same nature as the completed crime. INA section 101(a)(43)(U); 8 U.S.C. §1101(a)(43)(U).

vii) Term of imprisonment include suspended sentences. An indeterminate sentence is considered to be a sentence for the maximum period. United Statesv. Reyes-Castro, 13 F.3d 377, 389 (10th Cir. 1993).

viii) Major categories include:

(1) Murder,rape and sexual abuse of a minor. INA §101(a)(43)(A)

(a) Sexual abuse of a minor does not have to be a felony. Matter of Small, 23 I&N Dec. 448 (BIA 2002).

(i) Includes indecency with a child by exposure—regardless of the sentence imposed. In re. Rodriguez-Rodriquez, Int. Dec. 3411 (BIA 1999).

(2) Any felony punishable under the Controlled Substances Act. 21 U.S.C. § 801 et seq. INA §101(a)(43)(B)

(a) Includes all drug trafficking crimes,likely no matter how minor in nature.

(b) State felony simple possession is not an aggravated felony for immigration purposes. Lopez v. Gonzalez, 127 S.Ct. 625 (2006). The exception to this is the possession of flunitrazepam.

(3) Crimes of violence for which the term of imprisonment imposed is at least one year. INA §101(a)(43)(F)

(a) Crime must meet the federal definition of crime of violence at 18 U.S.C. § 16

(i) Any crime (felony,misdemeanor or petty offense) that has as an actual element of the offense the use,attempted use,or threatened use of force against the person or property of another,or

(ii) Anyfelonythat,by its nature,involves a substantial risk that physical force may be used in the course of committing the offense.

(b) The proper analysis is the “use of force" during the commission of the offense,NOT the risk of injury. Leocal v. Ashcroft, 543U.S. 1 (2004).

(i) Examples:

  1. Arson: In re Palacios-Pinera, Interim Decision 3373 (BIA 1998).

  2. Statutory Rape: In re B-, 21 I & N Dec. 287 (BIA 1996).

  3. Trespass to dwelling under Coloradolaw. United Statesv. Venegas-Ornelas, 348 F.3d 1273 (10th Cir. 2003).

  4. Simple DUI is not a crime of violence. U.S. v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003).

  5. Negligence crimes do not count. Leocal v. Ashcroft, 543U.S. 1 (2004).

  6. Third Degree Assault under Coloradolaw is divisible and may be a crime of violence. U.S.v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005), Rashid v. Gonzales, 190 Fed. Appx. 676 (2006).

(4) Theft offenses including receipt of stolen property or burglary offenses,for which the term of imprisonment imposed is at least one year.

(a) Theft is the taking of property where there is criminal intent to deprive the owner of the benefits and rights of ownership,notwithstanding that the deprivation may be less than total or permanent. Matter of V-S-Z-, 22 I&N Dec. 1338 (BIA 2000).

(5) Fraud or deceit offenses for which the loss to the victim exceeds $10,000.00.

(6) Trafficking in firearms or interstate offenses in firearms or unlawful possession of certain firearms prohibited by federal statute

(7) Convictions for alien smuggling/harboring/transportation

(8) Forgery offenses for which the term of imprisonment imposed is at least one year.

(9) Obstruction of justice,perjury,or bribery of a witness for which the sentence imposed is at least one year.

Additional Resources

Joseph Immigration Law Firm, P.C.

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