Being convicted of an aggravated felony is the last thing a noncitizen wants to have happen. It is an almost-guaranteed way to be deported. But what constitutes an aggravated felony and what exactly the range of consequences are for green card holders (permanent residents), persons who have a nonimmigrant visa and undocumented persons are not well-understood issues. This blog post is intended to give readers the basics about aggravated felonies in the immigration context.
Why is being convicted of an aggravated felony such a bad thing for a noncitizen?
The consequences of a conviction for an aggravated felony are, by almost all accounts, severe. A noncitizen - whether a permanent resident (green card holder) or not, and whether they entered the country legally or remain in a legal status or not - convicted of an aggravated felony is not only removable; the immigration authorities (Immigration and Customs Enforcement (ICE)) put these individuals (and especially individuals convicted of a crime of violence) at the top of the list of persons for whom their limited resources are to be used in prosecuting. Make no mistake - a person convicted of a crime that may fall within the ambit of an aggravated felony for immigration purposes should talk as soon as possible with a lawyer for immigration advice.
In addition to being deportable, a person convicted of an aggravated felony can get up to twenty years in prison if they re-enter the U.S. illegally, and are barred indefinitely from coming to the U.S. legally. Furthermore, a person convicted of an aggravated felony can't naturalize (become a U.S. citizen) because they cannot, by law, satisfy the "good moral character" requirement. Importantly, a noncitizen convicted of an aggravated felony is ineligible from most types of relief from deportation. This means that the best defense for a person in deportation proceedings who has been convicted of what the government claims is an aggravated is often to argue that the offense simply doesn't constitute an aggravated felony under immigration law. Also, such persons are subject to mandatory detention in prison - they can't be released on bond - and they can also be removed (deported) from the country much quicker than most other noncitizens in deportation proceedings through a process called expedited removal. Finally, a removal order based on an aggravated felony isn't subject to review by the federal courts.
What is an aggravated felony in the immigration context?
Originally, only a few types of crimes were defined by the Immigration and Nationality Act (the main body of law regulating immigration) as aggravated felonies - murder, drug trafficking and trafficking in firearms. This list has since been expanded multiple times, most significantly in 1996 by two immigration-related acts (AEDPA and IIRIRA). Now the list is long and some of the offenses have been interpreted extremely broadly, meaning activities that do not strike most people as worthy of being called an "aggravated felony" now fall within that definition.
One of the most well-known examples involves a case where the respondent (this is what they call a person in deportation proceedings) stole a ten-dollar video game. This, the court said, was an aggravated felony, despite that the sentence was suspended, meaning the person served no jail time for this crime. It was a misdemeanor theft charge under state law, but for purposes of determining whether an offense is an aggravated felony under immigration law, federal law controls, not state law - theft is an aggravated felony for immigration law purposes where the sentence handed down is one year or more (amazingly, even if it's a suspended sentence).
Presently, offenses that constitute an aggravated felony include:
● drug trafficking, including possession of drugs
● trafficking in firearms
● sexual abuse of a minor
● money laundering
● crimes of violence where the sentence handed down is for one year or more
● theft - including receipt of stolen property - or burglary where the sentence handed down is for one year or more
● child pornography
● prostitution-related offenses
● racketeering (RICO offenses)
● obstruction of justice
● fraud where the loss exceeds $10,000
There are a few others, but the offenses list above are the most common that constitute an aggravated felony in the immigration context. Some of the more controversial of the offenses listed above include drug trafficking, crimes of violence and theft. The drug trafficking offense includes, to the shock of many-a-noncitizen who is picked up for possession of an amount of drugs that would make the offense only a misdemeanor under state law, drug possession. What constitutes a crime of violence for immigration purposes is a subject that has received significant attention, due to an extremely liberal interpretation by certain courts. In one well-publicized case, a green card holder (permanent resident) was put in deportation proceedings for pulling another woman's hair. The permanent resident had lived in the United States since infancy, but was almost deported for a hair-pulling incident - only an executive pardon spared her from being deported. As mentioned previously, simple theft incidents, even where it involves an object of low value, can be considered a aggravated felonies for immigration law purposes.
Persons placed in deportation proceedings (this process is initiated when an individual receives a Notice to Appear from the government) on the basis of an aggravated felony should consult an attorney for immigration advice. This is a complicated area of law that requires experience and expertise to navigate successfully, or at least - as is unfortunately often the case where an aggravated felony is at issue - to help mitigate the damage that may be caused to a person when a conviction for an offense that even might be considered an aggravated felony is at issue.
Contact Heartland and speak with one of our attorneys for immigration advice