What Crimes Are Defined as Aggravated Felonies?
The Immigration and Nationality Act lists 21 categories of crimes constituting aggravated felonies. The list is broad and inclusive.
Major categories include:
Murder, rape, and sexual abuse of a minor
Drug trafficking offenses
Firearms or destructive devices trafficking
Crimes of violence with one-year sentence
Theft offenses with one-year sentence
Fraud or deceit offenses with $10,000+ loss
Money laundering offenses (specific amounts)
Tax evasion involving $10,000+
Alien smuggling (with limited exceptions)
Document fraud with one-year sentence
Failure to appear after sentencing for crimes with two-year sentence
Bribery and counterfeiting offenses
Obstruction of justice with one-year sentence
Perjury or subornation of perjury with one-year sentence
RICO offenses with one-year sentence
The complete list includes many additional offenses with specific sentencing or amount thresholds.
Why Are State Misdemeanors Sometimes Aggravated Felonies?
Confusion arises because immigration "aggravated felony" status depends on:
Federal categorical analysis: Courts apply a categorical approach examining what conduct the statute of conviction necessarily covers, not what actually happened.
Sentence length: Many aggravated felony categories require a one-year sentence (whether served or suspended). State misdemeanors with one-year maximum sentences can qualify.
Loss amount: Fraud offenses become aggravated felonies based on loss amount, not state classification.
Federal definitions: Some crime types use federal definitions that differ from state law.
Example: A state shoplifting conviction with a one-year suspended sentence is a misdemeanor under state law but an aggravated felony "theft offense" under immigration law.
What Are the Immigration Consequences?
Aggravated felony convictions trigger devastating immigration consequences:
Mandatory deportation: Permanent residents and other non-citizens with aggravated felony convictions face mandatory removal proceedings.
No cancellation of removal: Aggravated felony convictions disqualify both LPR cancellation and non-LPR cancellation.
No asylum eligibility: Aggravated felony convictions bar asylum.
No voluntary departure: Cannot leave on favorable terms.
Permanent inadmissibility: Aggravated felony convictions create permanent inadmissibility upon removal.
Detention: Mandatory detention without bond for those in removal proceedings.
Limited federal court review: Restricted ability to challenge removal in federal courts.
Reentry consequences: Illegal reentry after aggravated felony deportation is a federal crime with up to 20 years imprisonment.
Are There Any Forms of Relief Available?
Limited relief options exist for aggravated felony cases:
Withholding of removal: Higher standard than asylum but not barred by most aggravated felonies. Provides protection from removal but not green card.
Convention Against Torture (CAT): Protection from return to countries where you would face torture. Available regardless of criminal history.
Adjustment under specific provisions: Very narrow exceptions for specific situations.
These options provide protection from removal but not the broader immigration benefits available to those without aggravated felony convictions.
How Does the Categorical Approach Work?
Courts apply the "categorical approach" to determine if a conviction qualifies as an aggravated felony:
The approach: Examine the elements of the statute of conviction to determine the minimum conduct that could result in conviction.
What is NOT considered: The actual conduct of the defendant, the facts of the specific case, or the sentence actually imposed (except for sentencing-based categories).
Modified categorical approach: Used for "divisible" statutes covering multiple distinct offenses. Courts can examine specific record documents to determine the offense of conviction.
Why this matters: A conviction under a broad statute may be an aggravated felony even if the actual conduct was minor.
Example of Categorical Analysis
State theft statute covers any taking with intent to deprive permanently. A conviction under this statute with a one-year sentence is an aggravated felony "theft offense" if:
The state statute necessarily covers conduct meeting the federal definition of theft offense.
The sentence imposed (whether served or suspended) was at least one year.
If the state statute is broader than federal theft offense definition, conviction may not be a categorical aggravated felony.
This analysis can differ between circuit courts and continues to evolve through case law.
What Are Common Surprising Aggravated Felonies?
Several common offenses often surprise non-citizens by triggering aggravated felony consequences:
Shoplifting with one-year sentence: A theft offense aggravated felony despite often being a misdemeanor.
Tax fraud over $10,000: Even if classified as misdemeanor, can be aggravated felony.
Forgery with one-year sentence: Fraud-related aggravated felony.
Driving under the influence in some circumstances: Generally not, but vehicular manslaughter or repeat DUI with serious injury can qualify.
Domestic violence with sentence: Can fall under crime of violence aggravated felony if sentence meets one-year requirement.
Failure to appear after sentencing: Two-year sentence requirement creates aggravated felony.
How Do Sentence Lengths Matter?
Many aggravated felony categories require specific sentence lengths:
One-year sentences create aggravated felonies for:
Crime of violence offenses
Theft offenses
Fraud or deceit offenses with $10,000+ loss
Various other specified crimes
Two-year sentences create aggravated felonies for:
Failure to appear after sentencing
Some specific other categories
Sentence definition: Includes time imposed, even if suspended or unserved. A 365-day suspended sentence triggers aggravated felony status the same as a 365-day served sentence.
This is why criminal defense attorneys representing non-citizens must understand sentence implications.
What Should Non-Citizens Do When Facing Charges?
Critical actions when facing any criminal charges:
Consult an immigration attorney immediately: Even before discussing plea options. Immigration consequences can be more severe than criminal sentences.
Inform criminal defense attorney of immigration status: Padilla v. Kentucky requires criminal defense attorneys to advise on immigration consequences, but specialized knowledge often helps.
Avoid quick plea deals: A "good" criminal deal can be devastating immigration-wise.
Document everything: Save all charging documents, plea agreements, and sentencing records.
Consider all immigration impacts: Beyond aggravated felony, also consider crimes involving moral turpitude, controlled substance offenses, and other specific immigration grounds.
What Is the Padilla Requirement?
Padilla v. Kentucky (2010) requires criminal defense attorneys to:
Inform clients of immigration consequences: Defense attorneys must advise non-citizen clients about immigration consequences of plea deals.
Provide specific advice when consequences are clear: When immigration consequences are clear from the statute, attorneys must say so specifically.
Reasonable investigation: Attorneys must conduct reasonable investigation when consequences are uncertain.
Failure consequences: Inadequate Padilla advice may support post-conviction relief if it results in a plea the defendant would not have otherwise accepted.
This requirement makes immigration-savvy criminal defense critical for non-citizens.
Can Aggravated Felony Convictions Be Vacated?
Limited options exist for challenging existing convictions:
Direct appeal: Standard criminal appeals can sometimes vacate convictions.
Post-conviction relief: State-specific procedures (writ of habeas corpus, motion to vacate) may be available.
Padilla-based motions: Argue ineffective assistance of counsel based on inadequate immigration advice.
Plea withdrawal: Some states allow withdrawal of pleas under specific circumstances.
Pardons: Executive pardons from governors or president can address some immigration consequences.
Does Expungement Help?
State expungement generally does NOT help with immigration:
Federal definition controls: Immigration law uses its own definition of conviction, not state law.
Conviction still exists for immigration: Even expunged convictions are convictions for immigration purposes.
Limited exceptions: Some specific dispositions (juvenile adjudications, deferred adjudications without admission of guilt) may avoid immigration consequences.
Pardons more effective: Full pardons may eliminate immigration consequences in some cases.
State-level expungement provides cosmetic relief but typically does not change immigration consequences.
Special Considerations
Long-term permanent residents: Even 30+ year permanent residents face mandatory deportation for aggravated felonies. No protection based on length of residence.
U.S. citizen children: Hardship to U.S. citizen children does not provide relief from aggravated felony deportation.
Military service: Veterans with aggravated felony convictions face the same deportation consequences as others.
Mental health considerations: Mental illness contributing to the offense may not change immigration consequences but could support post-conviction relief in some cases.
What If You're Already Deported?
Returning after aggravated felony deportation has severe consequences:
Federal crime: Illegal reentry after aggravated felony removal is punishable by up to 20 years imprisonment.
Permanent inadmissibility: You are permanently inadmissible without specific waivers.
Limited waiver options: Form I-212 permission to reapply has very limited applicability for aggravated felony cases.
No legal return path in most cases: For most aggravated felony deportees, there is no legal route to return.
