Aggravated Felony and Deportation
One of the goals of US immigration laws is to control which foreign nationals can enter and remain in the United States. Through the immigration laws, Congress has defined which types of conduct will prohibit a person from entering the United States or once in the country, bar them from remaining here. In order to protect US citizens and persons residing in the United States, Congress has determined that noncitizens, who violate certain immigration laws, pose a threat to the national security, or commit certain kinds of crimes should not be allowed to stay in the country.
The term aggravated felony emerged in the late 1980’s under the Anti-Drug Abuse Act of 1988. Initially, the term aggravated felony was created to include serious crimes such as murder, drug trafficking, and trafficking of firearms. However, over the years, the term aggravated felony has evolved to include several types of crimes. In addition, the consequences associated with a conviction for an aggravated felony have also become more austere.
The Immigration Act of 1990 expanded the definition of an aggravated felony and provided that a person convicted of an aggravated felony and incarcerated for five (5) years or more was not eligible for a relief from deportation under Section 212(c) of the Immigration & Nationality Act.
With the passing of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), the definition of aggravated felony was again expanded significantly and the relief available from deportation or removal once again diminished drastically.
Notably, a person is permanent barred from naturalizing, if convicted of an aggravated felony after November 29, 1990.
All noncitizens including lawful permanent residents, nonimmigrant visa holders, and illegal aliens are subject to removal or deportation upon a conviction of an aggravated felony.
In many instances, a noncitizen convicted of an aggravated felony will trigger deportation and will probably not be eligible for discretionary relief before the Immigration Judge. Whether a noncitizen is eligible for relief from deportation or removal will more than likely depend upon his date of conviction, the jurisdiction in which he lives and whether he or she is a lawful permanent resident. The noncitizen will be barred from the United States for twenty years, if deported or removed.
The term aggravated felony gives the impression that a felony criminal conviction is required to be considered an aggravated felony under the immigration law or that it must have been considered aggravated under state criminal law. This is not the case. Under the immigration law, a misdemeanor under state law can be considered an aggravated felony, and the conviction does not have to be considered aggravated under state law.
The Immigration and Nationality Act §101(a)(43), defines what constitutes an aggravated felony. Under the Act, an aggravated felony includes but is not limited to the following types of crimes:
- Sexual abuse of a minor
- Illicit trafficking of a controlled substance
- Money laundering, tax evasion or crimes involving fraud or deceit involving more than $10,000
- Crimes of violent offense, for which the term of imprisonment imposed is at least one year
- Theft or burglary offense, for which the term of imprisonment imposed is at least one year
Being convicted of a crime designated as an aggravated felony is detrimental to a noncitizen of the United States. The consequences are harsh and may result in losing privilege of remaining in the United States. So, if you have been arrested and your case has not yet been disposed of, we encourage you to seek the help of one of our criminal attorneys. They will work with our immigration attorneys so that your criminal case will not affect your immigration status in the United States.