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Aggravated Felony

Aggravated felonies are defined at 8 USC § 1101(a)(43), which lists dozens of common-law terms and references to federal statutes. Aggravated felonies (“AF”) are the convictions with the most serious immigration consequences for a noncitizen. Noncitizens who have been convicted of an AF are prohibited from receiving most forms of relief from deportation, including asylum, and from being readmitted to the United States at any time in the future.

A noncitizen who is convicted of an aggravated felony, deported or removed, and then returns to the U.S. without permission faces a tough federal prison sentence under 8 USC §1326(b)(2).

Mandatory Detention for Aggravated Felonies

Federal immigration authorities are required to detain any immigrant convicted of an “aggravated felony” upon his or her release from criminal custody. To obtain bond from an immigration judge, LPRs who are detained following a conviction of a potential “aggravated felony” must demonstrate with substantial likelihood that the crime in question does not qualify as an “aggravated felony.

Aggravated Felony Bars Relief

LPR Cancellation of Removal

LPRs who have been convicted of an aggravated felony cannot receive 42A LPR cancellation of removal.

Asylum

Particularly serious crimes bar asylum relief and a conviction for any aggravated felony is considered a particularly serious crime in asylum determinations, regardless of the term of criminal incarceration.

In addition, for purposes of asylum, additional crimes may be defined as “particularly serious crimes” or “serious nonpolitical crimes” by regulation. See 8 USC § 1158(b)(2)(B)(i). Further, courts have held that the Attorney General may designate a specific offense as a “particularly serious crime” through case-by-case adjudication. See 8 U.S.C. § 1158(b)(2)(B)(ii).

Waivers

Certain LPRs may not obtain a waiver of inadmissibility under Section 212(h) of the INA if they were convicted of an AF. A 212(h) waiver can waive criminal offenses that make a noncitizen inadmissible and allow for them to be admitted to the United States.

Voluntary Departure

An immigrant convicted of an aggravated felony is ineligible for voluntary departure. Voluntary departure is a discretionary form of relief allowing a deportable noncitizen to leave the country at their own expense in place of formal deportation.

Permanent Inadmissibility Following Departure from the United States

A noncitizen removed from the United States after being convicted of an aggravated felony (or who leaves
while an order of removal is outstanding) is permanently inadmissible. To lawfully reenter the United States, such an immigrant must receive a special waiver from USCIS, in addition to meeting all other grounds of admissibility.

Deportation without a Removal Hearing

Certain noncitizens convicted of an aggravated felony are provided fewer legal protections than other
immigrants. Any noncitizen convicted of an aggravated felony who is not a lawful permanent resident (LPR) may be administratively removed/deported from the United States without a formal hearing before an
Immigration Judge. See INA § 238, 8 U.S.C. § 1228.

What is an Aggravated Felony

Statute – INA § 101(a)(43)

(43) The term “aggravated felony” means-

(A) murder, rape, or sexual abuse of a minor;

(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18); See section 802 of Title 21 here.

(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title);

(D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;

(E) an offense described in-

(i) section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);

(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of title 18 (relating to firearms offenses); or

(iii) section 5861 of title 26 (relating to firearms offenses);

(F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at 5 least one year;

(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at 5 least one year;

(H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom);

(I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography);

(J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;

(K) an offense that-

(i) relates to the owning, controlling, managing, or supervising of a prostitution business;

(ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or

(iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);

(L) an offense described in-

(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18;

(ii) section 3121 of title 50 (relating to protecting the identity of undercover intelligence agents); or

(iii) section 3121 of title 50 (relating to protecting the identity of undercover agents);

(M) an offense that-

(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

(ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;

(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter 6

(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;

(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;

(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;

(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;

(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and

(U) an attempt or conspiracy to commit an offense described in this paragraph.

The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.

212 C Waiver

§ 212(c) relief was available to an LPR even if he had been convicted of an aggravated felony, as long as he did not serve a term of imprisonment of at least five years. Id. Ultimately, § 212(c) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in favor of the new cancellation of removal provision (which categorically bars relief to aliens convicted of any aggravated felony). See IIRIRA, P.L. 104-208, § 304, 110 Stat. 3009 (1996).

In INS v. St. Cyr, the Supreme Court ruled that § 212(c) relief remained available to aliens whose criminal convictions resulted from plea agreements and who would have been eligible for § 212(c) relief at the time of their plea. 533 U.S. 289, 326 (2001). Therefore, although § 212(c) relief has been superseded by statute, there is a small (and decreasing) category of aliens who may still be eligible for such relief.