Figuring out which crimes are aggravated felonies according to federal immigration law is not always easy.
Among the various crimes that can make a non-citizen of the United States deportable are so-called aggravated felonies (the others are called Crimes of Moral Turpitude). Someone who is in the United States with a visa or a green card (lawful permanent residence), and who commits an aggravated felony, can be removed or deported. Figuring out which crimes are aggravated felonies is, however, not always easy.
What Is an Aggravated Felony?
You can’t judge a crime by its name. People who have been convicted of misdemeanors, or of other crimes that were not charged as felonies in their state, have been found to have committed an aggravated felony and then deported.
In immigration law, aggravated felony is defined far more broadly than in most state’s criminal laws. The definition is found in Section 101(a)(43) of the Immigration and Nationality Act, or Section 1101(a)(43) of the U.S. Code.
Under U.S. immigration law, an aggravated felony is a crime that carries a particularly severe consequence if the crime is perpetrated by a non-citizen of the United States. Even non-violent, misdemeanor offenses can qualify as aggravated felonies, such as sales or distribution of a controlled substance (including marijuana). This is generally because Congress has determined that individuals who seek admission to the country should adhere to a particularly high standard of personal conduct.
The Immigration and Nationality Act lists more than two dozen offenses that the U.S. may determine are aggravated felonies. Although the Immigration and Nationality Act is a federal law, it applies to crimes prosecuted at the state level. These include but are not limited to:
- Drug trafficking
- Firearms trafficking
- Money laundering
- Tax evasion
- Theft (over $10,000)
- Alien smuggling
- Failure to appear in court pursuant to a court order
It is also worth noting that an attempt to commit any of these crimes or others on the list can also qualify as an aggravated felony.
If a non-citizen is convicted of an aggravated felony — lawful permanent residents included — then the consequences for the non-citizen are severe.
They include but are not limited to:
Cancellation of Removal Ineligibility
The non-immigrant is not eligible for cancellation of removal.
Any immigrant convicted of an aggravated felony is not eligible for asylum. This means that the U.S. will not grant the individual protection from persecution, however, they may eligible for Withholding of Removal or Deferral of Removal under the United Nations Conventions Against Torture.
Visa or Green Card and Naturalization Ineligibility
A non-citizen with an aggravated felony cannot apply for a visa, green card or apply for naturalization.
An non-citizen with an aggravated felony also faces deportation and removal hearings.
If a non-citizen is in removal proceedings and has a conviction that qualifies as an aggravated felony, then he has some options. These include but are not limited to:
Withholding of Removal and Convention Against Torture (CAT)
If the crime that qualifies as an aggravated felony is deemed not particularly serious – the person may be eligible for withholding of removal or deferral of removal under the Convention Against Torture, also known as CAT – then the undocumented immigrant might avoid deportation if his life or freedom would be threatened if he returned home.
In certain cases, depending on the year of the conviction, the non-citizen can seek a waiver under Section 212(h) of the Immigration and Nationality Act. This applies when deporting the person would cause extreme hardship to him and his family.
To attempt either of these legal actions or others designed to keep him in the United States, the undocumented immigrant needs an experienced immigration attorney who understands the law and who will protect his rights. Facing deportation with an aggravated felony requires the help of an experience immigration attorney.
How Can You Protect Yourself Against Removal If You’ve Been Charged With a Crime?
The best thing to do if you’ve been charged with a crime, and are not a U.S. citizen, is to hire not only a criminal lawyer, but an immigration lawyer. The immigration lawyer can help make sure that the crime with which you’re charged, or to which you agree to plead guilty, is not likely to be defined as an aggravated felony under the immigration laws. Unlike many law firms, Muhaisen & Muhaisen, LLC has both experienced criminal defense, and immigration lawyers. Our lawyers work together to fight for outcomes that benefit our clients in both their criminal matters and immigration futures.
Few criminal lawyers understand the implications of criminal convictions in immigration cases. The criminal lawyer might give you advice that would be good for a U.S. citizen; for example, “Plead guilty to this and the sentence will be deferred!”; but that might be the worst advice from an immigration standpoint, and result in your deportation.
If you have already been convicted of a crime, and are facing removal, you’ll also want to hire an immigration attorney, if possible. If you’re not yet a permanent resident, but are only in the U.S. on a nonimmigrant visa, you can be removed from the U.S. without a hearing before a judge in immigration court.
As an apparent aggravated felon, expect to be placed in detention. Aggravated felons are not eligible for release on bond.
Other Limitations Placed on Aggravated Felons
Aggravated felons are not eligible to apply for asylum or the protections of the Convention Against Torture, despite any fear they might have of persecution in their home country. They are also not eligible for a defense to removal known as cancellation of removal.
Once you’ve been convicted of an aggravated felony and removed from the U.S., you are permanently inadmissible. In other words, you will never again be eligible for a U.S. visa or green card.
Contact us if you have specific questions about your situation at 303-407-0453 or fill out our contact form: https://www.m2lawyers.com/contact-us/