Visa Lawyer Blog
One of the most common questions we often receive during in person and telephonic consultations is whether an aggravated felony may decrease a person’s chances to legalize their status in the United States. The harsh reality is that the immigration options for noncitizen aliens convicted of an “aggravated felony” are severely limited, and in most situations, the immigration laws of the United States subject these individuals to the harshest deportation consequences. Even if you have been lawfully admitted to the United States or are currently a Legal Permanent Resident (LPR) you may be subject to deportation if you commit an aggravated felony. In other words, so long as you are a noncitizen alien, you may be at risk of deportation if you are or have been convicted of what is considered an “aggravated felony” in the United States or any other country. What’s more, aggravated felons lose many of the privileges that are designed to provide relief to individuals from deportation, and in some cases these individuals may be prevented from re-entering the United States permanently, following removal from the United States. The immigration laws of the United States, passed by Congress, contain numerous provisions that are designed to keep criminals outside of the United States, and in turn prevent criminals from being allowed to remain in the United States. While Congress has recognized that there are few exceptions to the rule that should be made in cases where there is a compelling argument to be made in favor of allowing a person found guilty of an aggravated felony to remain in the United States, having taken into consideration the fact that an immigrant’s removal may result in extreme hardship for U.S. Citizens. Unfortunately, these exceptions are very few and far in between, and deportation is the most probable outcome. When it comes to crimes of moral turpitude and crimes that fall under the category of “aggravated felonies” the U.S. immigration system is very unforgiving.
What is an aggravated felony?
An aggravated felony is a term that describes a particular category of offenses that carry with them harsh immigration consequences as punishment for noncitizen aliens who have been convicted of these types of crimes. Noncitizens who have been convicted of an aggravated felony lose the opportunity to apply for most common forms of relief available to law abiding noncitizens, that would have shielded them from deportation. Noncitizens who have been convicted of an aggravated felony for example are ineligible to apply for asylum and may not be readmitted to the United States in the future. An “aggravated felony” is an offense that Congress has labeled as such, and does not actually require the crime to be considered “aggravated” or a “felony” to qualify to be an “aggravated felony.” In other words, the term must not be taken literally. Many crimes that are labeled “aggravated felonies” are nonviolent in nature and constitute minor offenses, nonetheless these crimes fall under the Congressional categorization of an “aggravated felony.”
The myth of what constitutes an “aggravated felony”
For purposes of immigration law, an offense does not need to be considered “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” under the Congressional definition of “aggravated felony.” There are numerous non-violent and trivial misdemeanors that are considered aggravated felonies per the immigration laws of the United States. At its inception, the term referred to crimes that were of a violent and non-trivial nature including such crimes as murder, federal drug trafficking, and illicit trafficking of firearms. Today, Congress has expanded the types of crimes that fall under the category of “aggravated felonies” to include non-violent crimes such as simple battery, theft, the filing of a false tax return, and failure to appear in court when summoned. To view the complete list of aggravated felonies under the Immigration and Nationality Act please click here. Other offenses that fall under this category include sexual abuse of a minor, although some states do not classify these crimes as misdemeanors or criminalize such behavior for example in cases of consensual intercourse between an adult and a minor. In most situations, a finding of any of these offenses will result in the loss of most immigration benefits, and in cases where the noncitizen is already a legal permanent resident or is in lawful status, the noncitizen will be subject to deportation.
Retroactive Application to Aggravated Felonies
Even in cases where the conviction of an “aggravated felony” occurred before the crime was labeled as such in the Immigration and Nationality Act, most federal courts recognize that a past conviction for any offense listed as an “aggravated felony” under the INA will be grounds for deportation of the noncitizen alien. Congress is constantly expanding the list of offenses which are considered “aggravated felonies” in the INA, therefore if Congress adds a new offense in the future which qualifies as an “aggravated felony” and a lawfully present noncitizen has been found previously convicted of such an offense, the noncitizen alien will become immediately deportable, even if the noncitizen alien committed the offense before it was considered an “aggravated felony.” Additions to the list of criminal offenses which qualify as “aggravated felonies” will thus automatically be applied retroactively to prior convictions.
Crimes of Moral Turpitude and Other Criminal Offenses
Aggravated felonies are only one category of criminal offenses for which an immigrant can be deported. Noncitizens who have been convicted of one or more crimes of moral turpitude may also be subject to deportation, but are not necessarily ineligible for most immigration benefits in the same way as individuals who have convicted an aggravated felony. Most of the offenses that qualify as crimes of moral turpitude are also considered aggravated felonies. In addition, the immigration laws of the United States permit deportation for various standalone offenses. The aggravated felony classification is significant in that a conviction of an aggravated felony results in increased immigration penalties, and prevents individuals from qualifying for relief from deportation.
Ultimate Consequences of Committing an Aggravated Felony
Conviction of an aggravated felony may result in the following harsh consequences many of which lead to deportation:
- Deportation without a Removal Hearing:
Certain noncitizens who have been convicted of an aggravated felony are not afforded the same legal protections as other immigrants. As a result, certain noncitizens may be deported from the United States without a removal hearing. Under U.S. immigration law, an immigrant who has been convicted of an aggravated felony, who is not a lawful permanent resident can be administratively deported without a formal hearing before an Immigration Judge. Immigrants who are placed in removal proceedings are not eligible for asylum or other discretionary relief from deportation. Immigrants who are deportable based on a conviction of aggravated felony, who are not lawful permanent residents of the United States, may not appeal to the Board of Immigration Appeals (BIA). These persons may be removed from the United States within two weeks of a removal order entry.
- Mandatory Unreviewable Detention Following Release from Criminal Custody
By law, federal immigration authorities must detain any immigrant who has been convicted of an aggravated felony upon the immigrant’s release from criminal custody. LPR immigrants may obtain bond from an immigration judge following a potential aggravated felony conviction only if they can demonstrate that the crime for which they were detained does not qualify as an “aggravated felony.”
- Ineligibility for Asylum
Noncitizens who have been convicted of an aggravated felony are not eligible to apply for asylum; a form of immigration relief based on a well-founded fear of persecution in the country of nationality or last habitual residence.
- Ineligibility for Withholding of Removal
Noncitizens who have been convicted of an aggravated felony are not eligible to apply for withholding of removal; a form of relief from deportation based on a threat on the immigrant’s life or freedom in the country of deportation.
- Ineligibility for Cancellation of Removal
Noncitizens who have been convicted of an aggravated felony are not eligible to apply for cancellation of removal even if they assert that their removal would cause an exceptional and extremely unusual hardship to a U.S. Citizen family member. Cancellation of Removal is a form of relief from deportation authorized by an immigration judge to allow deportable immigrants to remain in the United States.
- Ineligibility for Certain Waivers of Inadmissibility
Certain LPR immigrants who have been convicted of an aggravated felony will be ineligible to apply for a waiver of inadmissibility under 212(h) of the INA. The waiver of inadmissibility excuses the immigrant’s previous immigration violations so that they may seek admission to the United States. These waivers are typically available to LPRs whose removal would cause an extreme hardship to a qualifying relative living in the United States.
- Ineligibility for Voluntary Departure
Noncitizens who have been convicted of an aggravated felony are not eligible to apply for voluntary departure; a discretionary form of relief that allows deportable immigrants to leave the United States by their own recognizance, as an alternative to being formally deported by being served with a removal order.
- Permanent Inadmissibility Following Departure from the United States
Arguably one of the harshest punishments for noncitizen aliens who have committed an aggravated felony is the punishment of being permanent inadmissible from the United States following removal or departure while a removal order is outstanding. A noncitizen alien who is removed or who leaves the United States faces permanent inadmissibility. These individuals may only lawfully reenter the United States by obtaining a rare and special waiver from the Department of Homeland Security, and must meet grounds of admissibility.
- Harsh Penalties for Illegally Reentering the United States
Lastly, possibly the harshest consequence includes the possibility of facing imprisonment from up to a 20-year period, if the noncitizen alien has been removed from the United States following a conviction for aggravated felony, and subsequently reenters the United States illegally.
For more information regarding deportation, removal, and exclusion please click here. As always it is our pleasure to discuss your immigration questions. For a free first time legal consultation please contact our office.