“Aggravated felony” is a term of art used to describe a category of offenses carrying particularly harsh immigration consequences for noncitizens convicted of such crimes. Regardless of their immigration status, noncitizens who have been convicted of an “aggravated felony” are prohibited from receiving most forms of relief that would spare them from deportation, including asylum, and from being readmitted to the United States at any time in the future.
Despite what the ominous-sounding name may suggest, an “aggravated felony” does not require the crime to be “aggravated” or a “felony” to qualify. Instead, an “aggravated felony” is simply an offense that Congress sees fit to label as such, and today includes many nonviolent and seemingly minor offenses.
Aggravated Felonies under 8 USC § 1101(a)(43) (displayed alphabetically; statute subsection noted after category)
- alien smuggling- smuggling, harboring, or transporting of aliens except for a first offense in which the person smuggled was the parent, spouse or child. (N)
- attempt to commit an aggravated felony (U)
- bribery of a witness- if the term of imprisonment is at least one year. (S) · burglary- if the term of imprisonment is at least one year. (G)
- child pornography- (I)
- commercial bribery- if the term of imprisonment is at least one year. (R)
- conspiracy to commit an aggravated felony (U)
- counterfeiting- if the term of imprisonment is at least one year. (R)
- crime of violence as defined under 18 USC 16 resulting in a term of at least one year imprisonment, if it was not a “purely political offense.” (F)
- destructive devices- trafficking in destructive devices such as bombs or grenades. (C)
- drug offenses- any offense generally considered to be “drug trafficking,” plus cited federal drug offenses and analogous felony state offenses. (B)
- failure to appear- to serve a sentence if the underlying offense is punishable by a term of 5 years, or to face charges if the underlying sentence is punishable by 2 years. (Q and T)
- false documents- using or creating false documents, if the term of imprisonment is at least twelve months, except for the first offense which was committed for the purpose of aiding the person’s spouse, child or parent. (P)
- firearms- trafficking in firearms, plus several federal crimes relating to firearms and state analogues. (C)
- forgery- if the term of imprisonment is at least one year. (R)
- fraud or deceit offense if the loss to the victim exceeds $10,000. (M)
- illegal re-entry after deportation or removal for conviction of an aggravated felony (O) 109 Immigrant Legal Resource Center, www.ilrc.org § N.6 Aggravated Felonies January 2013
- money laundering- money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000, and offenses such as fraud and tax evasion if the amount exceeds $10,000. (D)
- murder- (A)
- national defense- offenses relating to the national defense, such as gathering or transmitting national defense information or disclosure of classified information. (L)(i)
- obstruction of justice if the term of imprisonment is at least one year. (S)
- perjury or subornation of perjury- if the term of imprisonment is at least one year. (S) · prostitution- offenses such as running a prostitution business. (K)
- ransom demand- offense relating to the demand for or receipt of ransom. (H)
- rape- (A)
- receipt of stolen property if the term of imprisonment is at least one year (G)
- revealing identity of undercover agent- (L)(ii)
- RICO offenses- if the offense is punishable with a one-year sentence. (J)
- sabotage- (L)(i)
- sexual abuse of a minor- (A)
- slavery- offenses relating to peonage, slavery and involuntary servitude. (K)(iii)
- tax evasion if the loss to the government exceeds $10,000 (M)
- theft- if the term of imprisonment is at least one year. (G)
- trafficking in vehicles with altered identification numbers if the term of imprisonment is at least one year. (R)
- treason- federal offenses relating to national defense, treason (L)
What are the Potential Consequences of Being Convicted of an “Aggravated Felony”?
Deportation without a Removal Hearing
Certain noncitizens convicted of an “aggravated felony” are provided fewer legal protections than other immigrants. For example, any immigrant convicted of an “aggravated felony” who is not a lawful permanent resident (LPR) may be administratively deported from the United States without a formal hearing before an Immigration Judge. Immigrants placed in such proceedings are not eligible for asylum or any other form of discretionary relief. Immigrants found deportable in this manner may not appeal to the Board of Immigration Appeals (BIA) and can be physically removed two weeks after entry of the order.
Mandatory Unreviewable Detention Following Release from Criminal Custody
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.”
Ineligibility for Asylum
Any immigrant convicted of an “aggravated felony” is ineligible for asylum. Asylum is a form of immigration relief available to immigrants who suffered or have a well-founded fear of persecution in their country of nationality or last habitual residence. Immigrants convicted of an “aggravated felony” may also be ineligible for “withholding of removal,” a similar form of relief for noncitizens whose life or freedom would be threatened in the country of deportation.
Ineligibility for Cancellation of Removal
Any immigrant convicted of an “aggravated felony” is ineligible for cancellation of removal (“cancellation”). Cancellation is a form of relief allowing immigration judges to permit otherwise deportable immigrants to remain in the United States. The bar to cancellation for immigrants convicted of an “aggravated felony” applies regardless of whether their removal would cause “exceptional and extremely unusual hardship” to an immediate family member who is a U.S. citizen or LPR.
Ineligibility for Certain Waivers of Inadmissibility
Certain LPRs may not obtain a waiver of inadmissibility under Section 212(h) of the INA if they were convicted of an “aggravated felony.” A waiver of inadmissibility is a means of excusing immigrants for past misconduct that makes them ineligible for admission to the United States. Waivers under Section 212(h) are available to prospective LPRs whose removal from the United States would cause “extreme hardship” to a qualifying U.S. citizen or LPR.
Ineligibility for Voluntary Departure
An immigrant convicted of an “aggravated felony” is ineligible for voluntary departure. Voluntary departure is a discretionary form of relief allowing otherwise deportable immigrants to leave the country at their own expense in place of formal deportation under an order of removal.
Permanent Inadmissibility Following Departure from the United States
An immigrant 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 the Department of Homeland Security (which is very rare), in addition to meeting all other grounds of admissibility.
Enhanced Penalties for Illegally Reentering the United States
An immigrant who is removed from the United States following a conviction for an “aggravated felony,” and who subsequently reenters the country illegally, may be imprisoned for up to 20 years rather than two years.