Immigration Law: What is an Aggravated Felony?

 Posted on July 29, 2015 in Immigration

Immigration law is a difficult discipline, especially when it comes to removal issues. A term that is heard very often in questions concerning possible deportation is aggravated felony. However, the experts are somewhat divided on what actually constitutes an aggravated felony, and what its ramifications are in terms of immigration benefits. The answer is complex, but not out of reach.

Definition and History

An aggravated felony is defined in a somewhat slippery fashion in terms of U.S. law. If one tries to search for a specific definition, one finds a list of crimes that fall under the category of aggravated felony, but not a list of criteria that makes the crimes in question aggravated felonies. Even the definition at 8 USC § 1101(a)(43) is simply a list of crimes.

The term ‘aggravated felony’ only appeared in U.S. immigration law in 1988, when modifications were made to the Immigration & Nationality Act (INA). At first, only certain drug crimes and murder were part of the group, but the Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA) and other legislation added several more over the next decade. As of this writing, the term has significantly expanded beyond its original definition, which is a source of controversy for multiple reasons.

The primary issues many have with this classification are twofold. Firstly, the definition has become muddled. Currently, there are several crimes which are neither aggravated nor felonies that still trigger immigration consequences associated with aggravated felonies. Generally, aggravated felonies are crimes for which the sentence imposed is a minimum of more than one year, but in practice, this requirement is often ignored. Secondly, most of the time, criminal violations are prosecuted by state courts, but immigration consequences are always federal. This can lead to jurisdiction disputes and confusion, given the different consequences of immigration and state law violations.

Consequences of Conviction

The normal procedure when a foreign national or Lawful Permanent Resident (LPR, or green card holder) is convicted of an aggravated felony is to allow him or her to serve their criminal sentence, after which he or she is deported to their home country. The consequences of the conviction can affect every possible immigration benefit for many people. Some include ineligibility for cancellation of removal, ineligibility for asylum (though protection under the Convention Against Torture (CAT) may still be available), and ineligibility for citizenship.

If you are convicted of an aggravated felony, you are, without exception, subject to a bar on re-entry after you leave the country, which makes you permanently inadmissible to the United States.

The only possible way to re-enter the country legally is to obtain a special waiver from the Department of Homeland Security, and meet all other criteria for admissibility. This is very rare, and many who have been convicted and deported try to return without inspection (that is, attempt to illegally enter the country). This can be an extremely dangerous proposition: normally, if a foreign national is found to have illegally entered the United States, the maximum sentence is two years, but if caught after conviction of an aggravated felony, the maximum sentence balloons to 20 years.

Seek Experienced Legal Help

One criminal conviction can destroy the life you have worked hard to build. If you are in a situation that could result in your deportation, you need a skilled immigration attorney on your side. The dedicated Chicagoland immigration lawyers at Mevorah & Giglio Law Offices will work hard for you, keeping you in the loop and ensuring that all possible steps are taken to ensure an appropriate outcome. Contact our office today to discuss your case.