AGGRAVATED FELONIES BIA CASE LAW Accessory After the Fact Matter of Batista, 21 I&N Dec. 955 (BIA 1997) (1) The offense of accessory after the fact to a drug-trafficking crime, pursuant to 18 U.S.C. §3 (Supp. V 1993), is not considered an inchoate crime and is not sufficiently related to a controlled substance violation to support a finding of deportability pursuant to section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). (2) The respondent’s conviction pursuant to 18 U.S.C. § 3 establishes his deportability as an alien convicted of an aggravated felony under section 241(a)(2)(A)(iii) of the Act,because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under section 101(a)(43)(S) of the Act, 8 U.S.C.A. §1101(a)(43)(S) (West Supp. 1997), and because the respondent’s sentence, regardless of any suspension of the imposition or execution of that sentence, “is at least one year.” Alien Smuggling Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999) An alien convicted of an offense described in section 275(a) of the Immigration and Nationality Act, 8 U.S.C. § 1325 (Supp. II 1996), is not convicted of an aggravated felony as that term is defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), which specifically refers to those offenses relating to alien smuggling described in sections 274(a)(1)(A) and (2) of the Act, 8U.S.C. § 1324(a)(1)(A) and (2) (Supp. II 1996). Arson Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) Attempted arson in the third degree in violation of sections 110 and 150.10 of the New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(43)(E)(i) (2006), even though the State crime lacks the jurisdictional element in the applicable Federal arson offense. Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed. Matter of Palacios, 22 I&N Dec. 434 (BIA 1998) An alien who was convicted of arson in the first degree under the law of Alaska and sentenced to 7 years’ imprisonment with 3 years suspended was convicted of a “crime of violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act, 8U.S.C. §1101(a)(43)(F) (Supp. II 1996), and therefore is deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated felony. Burglary Matter of Perez, 22 I&N Dec. 1325 (BIA 2000) (Burglary of a Vehicle) The offense of burglary of a vehicle in violation of section 30.04(a) of the Texas Penal Code Annotated is not a “burglary offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43)(G) (Supp. IV 1998). Commercial Bribery Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010) The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) (2006) is not an offense “relating to” commercial bribery and is therefore not an aggravated felony under section 101(a)(43)(R) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(R) (2006). Conspiracy Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) (1) The term “conspiracy” in section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (2006), is not limited to conspiracies that require the commission of an overt act in furtherance of the conspiracy by one of the conspirators. (2) An alien who was only convicted of conspiracy to commit an aggravated felony and is removable on the basis of that conviction under section 101(a)(43)(U) of the Act may not also be found removable for the underlying substantive offense, even though the record of conviction shows that the conspirators actually committed the substantive offense. Controlled Substances Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014) Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach. Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014) Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012). Matter of Flores, 26 I&N Dec. 155 (BIA 2013) The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed. Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) An alien convicted of possession of marijuana with intent to distribute under State law has the burden to show that the offense is not an aggravated felony because it involved a “small amount of marihuana for no remuneration” within the meaning of 21 U.S.C. § 841(b)(4) (2006), which the alien may establish by presenting evidence outside of the record of conviction. Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified. Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) The offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) Absent

18 U.S.C. §16. Crime of violence definedThe term “crime of violence” means- (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 USC 16: Crime of violence defined A person has been convicted of an aggravated felony if the conviction is for a “crime of violence” and the sentence is at least on year. See INA § 101(a)(43)(F). The definition of “crime of violence” is, in turn, defined by 18 U.S.C. § 16. Aggravated felonies constitute both a ground of deportability and a bar to several forms of relief in removal proceedings See, e.g., INA §§ 237(a)(2)(A)(iii); 240A(a). The first subsection of the crime of violence definition at 18 U.S.C. § 16(a) provides that “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” is a deportable offense if the sentence is at least one year. The second subsection states that a crime of violence includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force may be used in the course of committing the offense.” 18 U.S.C. § 16(b). This section swept in offenses that involved no violent force, such a burglary or evading the police. The Supreme Court had previously held that a similar statute was unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015). In Sessions v. Dimaya SCOTUS issued a decision on April 17, 2018, holding that the second clause of the definition of “crime of violence” as used in the definition of an aggravated felony is unconstitutionally void for vagueness.

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 leaveswhile 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 otherimmigrants. 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 anImmigration 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