When it comes to the intersection of immigration and criminal law, it can be difficult to understand how a charge or conviction could affect your immigration status. Some crimes have no immigration consequences at all, while others have very serious consequences. One example is aggravated felonies. But what are aggravated felonies and how exactly can they affect your status as an immigrant? We answer these questions and more in this blog post.
At Ybarra Maldonado Law Group, our Phoenix immigration lawyers are dedicated to ensuring that immigrants and immigrant families are given the chance to thrive in their communities. That’s why we dedicate a significant portion of our practice to helping families in the communities that we ourselves come from. If you are an immigrant or a family member of an immigrant, our Phoenix law firm is here to help. To schedule a consultation with us, please call our office at 602-910-4040 today.
What Is an Aggravated Felony?
The term “aggravated felony” is understandably confusing for many people, as crimes don’t technically need to be “aggravated” or a “felony” to have that label. It is a term coined by Congress that describes crimes that have serious consequences under immigration law. Noncitizens who are convicted of an aggravated felony lose their ability to benefit from most forms of relief from deportation.
The term itself encompasses a wide array of crimes, both very serious and surprisingly minor. Under the full list are crimes such as murder, rape, sexual abuse, and firearms offenses. Also under the list are much less serious offenses, such as perjury and theft. It is also true that crimes that are not listed may still be considered aggravated felonies.
Immigration and Nationality Act
The Immigration and Nationality Act (INA) outlines a very broad category of offenses under the umbrella term “aggravated felonies.” Under this federal law, someone convicted of an aggravated felony will be barred from cancellation of removal and seeking asylum. They may even lose their right to a hearing, which prevents them from being able to fight against their deportation proceedings. A convicted aggravated felon also cannot be released on bond from a detention center.
The INA first included the term “aggravated felony” in its 1988 revision. This update came as a part of the Anti-Drug Abuse Act, which was a product of the notorious “War on Drugs.” Originally, the list of aggravated felonies included any federal drug trafficking crime, murder, explosive materials offenses, and gun trafficking crimes. In 1996, this list grew. It now includes more than 30 total crimes, some of which are not felonies under any state laws.
While some may be able to waive their inadmissibility through Form I-602, many cannot.
Supreme Court Case: Sessions v. Dimaya
A recent Supreme Court case has also had a significant impact on federal law when it comes to aggravated felonies. There is a provision in the INA that states a “crime of violence” could result in an aggravated felony conviction. The argument in the Supreme Court case was that the INA’s “crime of violence” provision was unconstitutionally vague according to the Fifth Amendment’s Due Process Clause.
In the end, the Supreme Court held that the vague provision was, in fact, unconstitutional. This effectively invalidated one of the grounds of removal in federal immigration law.
What Makes a Crime an Aggravated Felony?
As we stated previously, this term was only introduced in 1988, and originally included a very short list of serious offenses. Since then, Congress has continued to add crimes to the list, and has yet to take any crimes away from the list. Essentially, Congress decides which crimes to label as an aggravated felony. The current list contains more than 30 different crimes. Others are included for a second or subsequent offense, or if the term of imprisonment is a year or longer.
What Crimes Are Always Aggravated Felonies?
Keep in mind that the crimes on the list are not exhaustive. This is because Congress can technically designate any crime as an aggravated felony if it sees fit. However, the following crimes will almost always result in an aggravated felony conviction for noncitizens.
- Tax evasion
- Child pornography
- Commercial bribery
- Sexual abuse of a minor
- Theft offense for which a sentence of 1 year in prison is mandatory
- Burglary offense
- Possession of stolen property
- Alien smuggling
- Money laundering of over $10,000
- Illegal possession of a controlled substance
- Illicit trafficking
- Failure to appear for a court date
- Certain gambling offenses
- Obstruction of justice, perjury, or bribery of a witness
- Transmitting national defense information, as well as other national defense crimes
- Revealing the identity of undercover intelligence agents
- Offenses concerning destructive devices and explosive materials
- Any violent crime with a term of imprisonment of at least one year
- Simple battery
- Human trafficking
- Running or operating a prostitution business
- Treason, spying, and sabotage
- Vehicle trafficking
Keep in mind that one can receive aggravated felony charges for crimes other than those listed above. To determine whether or not the charges you face may impact your immigration status, we strongly recommend speaking with an experienced Phoenix immigration lawyer. Our legal team will evaluate the facts of your case and give you sound advice on how to proceed. We are uniquely qualified to handle these cases, as we have extensive experience in both criminal and immigration law, as well as the intersection of the two.
Difference Between an Aggravated Felony and a Crime Involving Moral Turpitude
An aggravated felony is not the same as a crime involving moral turpitude (CIMT). However, many of these crimes overlap with one another from both lists. Additionally, the consequences of an aggravated felony can be similar to the consequences of being convicted of a CIMT. This means that it is possible for one crime to be considered both an aggravated felony and a CIMT.
Crimes involving moral turpitude are those criminal offenses which are considered “vile” or “depraved.” Obviously, this is a very vague definition. Many different crimes in varying degrees of severity are included under the umbrella category of CIMTs. Ultimately, it is up to the courts to decide whether or not something classifies as a CIMT. If a noncitizen is convicted of a CIMT (other than a purely political offense), they can be classified as deportable or inadmissible. This means they could be deported or labeled as inadmissible to the United States.
Immigration Consequences for Aggravated Felony Convictions
Unfortunately, for even the minor offenses on the list of aggravated felonies, the consequences can be very severe. As we mentioned previously, the underlying offense itself doesn’t have to be extreme to constitute an aggravated felony. It simply needs to have the label of an aggravated felony. If an undocumented person is convicted of a criminal offense that is considered an aggravated felony, they could face the following consequences.
- Deportation proceedings without the opportunity to defend oneself at a removal hearing
- Mandatory time in a detention center once the individual is released from criminal custody
- Becoming ineligible for asylum status or withholding of removal
- Ineligibility for cancellation of removal proceedings
- Ineligibility for waivers of inadmissibility or voluntary departure
- In some cases, permanent bars of inadmissibility
- Increased penalties for those who illegally reenter the United States
Are Aggravated Felonies the Only Crimes That Constitute Deportation?
No. Crimes other than those explicitly labeled as aggravated felonies can also lead to deportation proceedings. Examples of other crimes for which immigrants could be deported include the following.
- Being convicted of more than one crime involving moral turpitude
- Being convicted of certain standalone offenses outlined in immigration law
- Convictions of serious crimes that are not listed as an aggravated felony or a CIMT
What if the Conviction Occurred Before the Crime Was an Aggravated Felony?
If you were convicted of a certain crime that was not listed as an aggravated felony at the time of the conviction, federal courts can still decide to pursue removal proceedings against you. This means that, when Congress adds a new crime to the list of aggravated felonies, any noncitizens who have been convicted of that crime become deportable. Therefore, new additions to the list work retroactively. Whether or not the state pursues removal proceedings against those who were convicted in the past is a different story.
What Is Post-Conviction Relief for Immigrants?
Post-conviction relief is the process by which a noncitizen can contest a conviction, have it reduced, or have it vacated entirely. This process, if successful, allows them to stay in the country rather than being deported. However, the process is often complicated and can be costly. Having an experienced immigration criminal lawyer on your side can greatly increase your chances of success, especially if you have little experience with immigration law. Some of the most common forms of post-conviction relief include the following.
- Motion for resentencing
- Petition for habeas corpus
- Motion to overturn the conviction due to ineffective assistance of counsel
- Reducing the conviction to a misdemeanor instead of a felony
- Motion to withdraw a no contest or guilty plea because the court failed to inform you of the consequences of entering those pleas
Keep in mind that most of these forms of relief have very strict deadlines. If you want to take advantage of post-conviction relief, we strongly recommend contacting an immigration attorney in Phoenix. Another way that undocumented immigrants may become eligible for adjustment of status or a green card is through Section 245i of the INA.
Can I Reenter the United States After an Aggravated Felony Conviction?
This depends on the circumstances of your case. If someone is deported, they may be required to wait a certain period of time before reentering the country. In some cases, they may be permanently barred from reentry. There are basically four different waiting periods: 5 years, 10 years, 20 years, and a permanent ban. In many cases, the waiting period depends on the decision of an immigration court judge.
Contact Ybarra Maldonado Law Group Today
At Ybarra Maldonado Law Group, we understand how scary and confusing it can be to face removal proceedings on your own. That’s why we use our extensive knowledge of immigration law and how criminal law intersects with it to help the families in our community. The vague language in many immigration laws allows the unjust deportation of many undocumented immigrants, but we’re here to fight for their rights and to keep families together. If you have an immigration issue you need help with, we’re here for you. To schedule a consultation with us, please call our office at 602-910-4040 today.