Aggravated Felonies in Immigration Law
Frequently asked questions about aggravated felonies and their significance in law.
Misdemeanors CAN be aggravated felonies.The term "Aggravated Felony" is a term of art. The meaning is independent of any State of Federal definition of the either the term "aggravated" or the term "felony". Many, many misdemeanors are aggravated felonies under the INA.
A conviction can be an aggravated felony conviction even if the sentence was lenient.There are actually very few categories of aggravated felonies that are dependent on a specific sentence. For instance, while crimes of violence and theft crimes are not aggravated felonies unless a sentence of one year or more has been imposed, the sentence imposed and the sentence served can be two vastly different things because the term imposed includes any portion which was suspended or left unserved due to good behavior or other factors. In fact, most aggravated felony categories require no specific sentence, imposed or otherwise. Drug Trafficking, Sex, and Fraud offenses can all be aggravated felonies if certain conditions exist even in the absense of any term of imprisonment.
Lots of serious crimes are not aggravated felonies, even crimes with long, long prison terms.Conversely, there are also many crimes which simply are not aggravated felonies regardless of the term of imprisonment imposed. For instance, battery and certain manslaughter offenses under California law do not qualify as aggravated felonies because they lack any element require a quantum of violence. These offenses can result in long prison terms and could, under certain circumstances, have no immigration effect at law.
Aggravated Felony cases can, and frequently are, successfully defended in Immigration Court.Attorneys skilled in the representation of criminal aliens win aggravated felony cases all of the time. There are certain forms of relief such as withholding of removal, 212(c), adjustment or re-adjustment of status with an (h) waiver, and withholding of removal and deferral of removal, among others which are not barred by an aggravated felony conviction. Often state crimes which sounds like an aggravated felony have an overly broad definition and sometimes the government is simply unable to present clear and convincing evidence that the offense is an aggravated felony. Even aggravated felonies are susceptible to being reopened or challenged in the State Courts and many changes to the conviction in the State Court that are not based on rehabilitation alone are binding on the Immigration courts.
Determining whether an offense is an aggravated felony is difficult AND can differ by jurisdiction.It is unlikely that even the most skilled lawyer can answer every, "is it an aggravated felony" question without reviewing the record of conviction. The law in this area is extremely complex and nuanced. Furthermore, different circuit courts have analyzed the same offenses in different way not to mention the fact that each states laws have their own legal and linguistic idiosyncrasies.
Effects of an aggravated felony conviction on immigration.The three most common ways an aggravated felony effects an immigration matter are:
(1) Renders an alien deportable and bars most, but not all, defenses to removal. Does NOT render (in and of itself) an alien inadmissible, but in some circumstances bars a waiver for other criminal grounds of inadmissibility;
(2) Makes it nearly impossible to readmitted as an immigrant if a removal order is executed. Does NOT make it impossible to readmitted as a non-immigrant (with some exceptions).
(3) Will render an alien ineligible for political asylum, TPS, DACA and other forms of protection. Does NOT prevent deferral of removal under the Convention Against Torture.