What Is an Aggravated Felony According to U.S. Immigration Law?

What Is an Aggravated Felony?

The term “aggravated felony” means something different in an immigration context than its more common criminal law meaning. In immigration law, an aggravated felony is one of the criminal offenses listed in the federal . 

To qualify, an offense doesn’t need to be a felony under applicable criminal law, and aggravating factors don’t need to be present. The list applies to criminal convictions in any state or federal court, as well as courts outside the U.S. (if you completed your sentence within the past 15 years).

Since the term “aggravated felony” was added to the INA in 1988, Congress has been solely responsible for deciding which crimes qualify as aggravated felonies under immigration law. Congress has added many offenses to this list over the past three decades. Changes to the list apply retroactively. So if you’ve been convicted of a crime and Congress later adds that crime to the list, you could face deportation and other consequences even though the offense wasn’t an aggravated felony when you were convicted.

Crimes That Are Almost Always Considered Aggravated Felonies

Some offenses on the INA list almost always qualify as aggravated felonies without regard to the sentence or severity. These include:

• Crimes related to kidnapping and human trafficking

• Crimes involving child pornography or sexual abuse of a minor

• Crimes related to drug trafficking

• Murder or rape of a minor

• Crimes involving treason or disclosure of classified government information

• Owning or operating a prostitution business

Crimes That May Qualify as Aggravated Felonies

Some offenses only qualify as aggravated felonies when they meet certain conditions, such as a minimum amount of damage (in dollars) or a minimum term of imprisonment. These include:

• Crimes involving forgery or counterfeiting

• Racketeering offenses or RICO violations

• Crimes related to perjury, commercial bribery, or obstruction of justice

• “Crimes of violence” as defined in the U.S. Code

• Crimes involving burglary, theft, or receipt of stolen property

• Crimes involving illicit trafficking of explosive materials or destructive devices, including some firearms offenses

Other offenses only qualify as aggravated felonies if the amount of damage or loss to the victim was more than a certain dollar amount (currently $10,000 or the equivalent). These include crimes related to:

• Money laundering

• Tax evasion

• Fraud

How Is an Aggravated Felony Different From a Crime of Moral Turpitude?

Even if a criminal conviction doesn’t qualify as an aggravated felony under the INA, it could still result in deportation and other immigration consequences if it’s considered a crime of moral turpitude. To determine whether an offense is a crime of moral turpitude, a USCIS officer or immigration judge considers the violator’s intention or state of mind in addition to their actions and the resulting sentence. The U.S. Code doesn’t define what constitutes a crime of moral turpitude, but courts have generally held that these crimes involve:

• Intentionally causing harm or acting recklessly without regard for consequences

• Intentional dishonesty

• Socially or morally unacceptable behavior

Many convictions that qualify as aggravated felonies are also considered crimes of moral turpitude. Either classification could result in deportation. But a crime of moral turpitude doesn’t necessarily entail all the additional immigration consequences that accompany aggravated felony convictions.

What Happens if You’re Convicted of an Aggravated Felony Conviction?

If you’re in the U.S. unlawfully and get arrested and charged with a crime, you could be deported without further proceedings. Otherwise, immigration consequences aren’t typically triggered until you’re convicted in criminal court. 

If you’re convicted of an aggravated felony and sentenced to any jail or prison time, you’ll serve this sentence first. When you complete your sentence, you’ll be transferred into the custody of federal immigration authorities. From there, you’ll likely be deported from the U.S. An aggravated felony conviction results in other permanent immigration consequences in addition to deportation.

Removal From the U.S.

Being convicted of an aggravated felony is grounds for removal from the United States. If you aren’t a lawful permanent U.S. resident, you can be deported without a formal hearing or appeal rights. Lawful permanent residents have more options to avoid deportation. But some of those options aren’t available after an aggravated felony conviction. 

If you’ve been convicted of an aggravated felony, you’re no longer eligible for the following relief options. But in rare cases you may be able to obtain a waiver (more on that below).

• Cancellation of Removal: As the name implies, cancellation ordinarily allows an immigration judge to cancel, or stop, removal proceedings. This option isn’t available if you’ve been convicted of an aggravated felony, even if your removal would cause extreme hardship to an immediate family member who legally resides in the U.S.

• Voluntary Departure: Voluntary departure allows immigrants who are otherwise deportable to make their own travel arrangements and leave the country at their own expense instead of formal deportation. Aggravated felons aren’t eligible for voluntary departure.

• Adjustment of Status: Sometimes, noncitizens may be able to avoid removal by adjusting their immigration status so that they are legally present in the U.S. As discussed below, an aggravated felony conviction renders you ineligible to be present in the U.S. In other words, there’s usually no available status to which you can adjust.

• Administrative Options: If you’ve been convicted of an aggravated felony, you aren’t eligible to pursue administrative relief options, such as appeals, stays, or motions to reconsider or reopen.

Other Immigration Consequences

An aggravated felony conviction has other immigration consequences in addition to deportation. After an aggravated felony conviction, you’ll be:

• Permanently ineligible for U.S. citizenship or green card: You won’t be eligible for naturalization or a green card. Even applying for these benefits after an aggravated felony conviction constitutes a criminal offense under immigration law.

• Permanently banned from admission into the U.S.: After an aggravated felony conviction, you are permanently barred from entering the U.S. or applying for a visa. Some immigrants who are banned from admission can apply for a waiver of inadmissibility. But an aggravated felony conviction limits the conditions on which you qualify for this waiver.

• Permanently ineligible for asylum status: A noncitizen can seek asylum in the U.S. if deportation would put their life or freedom at risk. You’re not eligible for asylum status if you’ve been convicted of an aggravated felony.

• Subject to increased penalties for unlawful reentry: After an aggravated felony conviction, if you’re ever discovered back in the U.S., you face up to 20 years in prison .

What Can I Do After an Aggravated Felony Conviction?

If you’re convicted of an aggravated felony, you have two avenues for seeking relief. The first involves the criminal court where the conviction was entered. The second involves seeking a waiver from immigration authorities.

Seeking relief after an aggravated felony conviction may be your last chance at lawful entry into the U.S. You’ll likely need to work with an experienced immigration attorney or criminal defense lawyer to ensure your best chances of success.

Post-Conviction Relief in Criminal Court

The forms of relief in criminal court are available in all criminal proceedings — they aren’t specific to immigration matters. They’re the same as in all criminal proceedings. The idea is that if you can eliminate or reduce the criminal court conviction, it will no longer qualify as an aggravated felony under the INA. You typically have a limited time after your conviction to pursue these options. They include: 

• Motion To Vacate Conviction:  You may be able to have your conviction overturned (thrown out) if your arrest, hearings, or trial involved serious violations of your rights or misconduct by the prosecutor, your lawyer, or the court.

• Appeal To Reduce Sentence: If a judge reduces your sentence to less than a year, the conviction might no longer qualify as an aggravated felony under the INA.

• Habeas Corpus Petition: If you’re sentenced to jail or prison time, you may be able to challenge your incarceration. The grounds for habeas corpus relief are roughly the same as the grounds for vacating your conviction: rights violations, prosecutorial/court misconduct, or ineffective assistance of counsel. 

Waiver of Inadmissibility

If you weren’t able to vacate or reduce your conviction or sentence through the criminal court, you can attempt to have your inadmissible status waived under immigration law. A waiver doesn’t erase your conviction. It just removes the consequence of a permanent ban from the U.S., allowing you to reapply for a visa. To apply for a waiver, you must first submit an I-212 Application for Permission to Reapply for Admission. If your I-212 application is granted, you may submit an I-601 Application for Waiver of Grounds of Inadmissibility. 

The grounds for seeking a waiver of inadmissibility vary depending on the specifics of your aggravated felony conviction. You aren’t eligible for a waiver if your conviction was for a violent or dangerous crime. If your conviction involved controlled substances, you’re only eligible for a waiver in limited circumstances.

Conclusion

The INA contains a list of criminal offenses that are considered aggravated felonies under immigration law. If you’re convicted of an aggravated felony, you’ll likely be deported. In addition, you’ll be permanently banned from returning to the U.S. There are steep penalties for illegal reentry. You can try to have your conviction overturned or reduced to a crime that doesn’t qualify as an aggravated felony. If that doesn’t work, you may be able to apply for a waiver of inadmissibility.