What Makes a Crime an “Aggravated Felony”?

An offense need not be “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” for purposes of federal immigration law. Instead, an “aggravated felony” is any crime that Congress decides to label as such. As two prominent immigration judges have noted, numerous “non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws.”

As initially enacted in 1988, the term “aggravated felony” referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. Congress has since expanded the definition of “aggravated felony” on numerous occasions, but has never removed a crime from the list. Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. 

What if the Conviction Occurred before the Crime Was Labeled an “Aggravated Felony”?

In most federal courts, a conviction for any offense listed as an “aggravated felony” is grounds for deportation, even if the crime was not considered an “aggravated felony” at the time of conviction. In other words, whenever Congress adds a new offense to the list of “aggravated felonies” in the Immigration and Nationality Act (INA), lawfully present noncitizens who have previously been convicted of such crimes become immediately deportable. As a result, any addition to the list of “aggravated felonies” will automatically apply retroactively to prior convictions.

Are “Aggravated Felonies” the Only Crimes for Which an Immigrant Can Be Deported?

No. An “aggravated felony” is one—but not the only—basis to deport immigrants convicted of a criminal offense. Removal proceedings may also be initiated against immigrants convicted of one or more “crimes involving moral turpitude,” a broad category of offenses that includes, but is not limited to, most crimes that qualify as an “aggravated felony.” Noncitizens convicted of crimes involving moral turpitude may be subject to deportation, but do not face the additional consequences associated with a conviction for an “aggravated felony.” The immigration laws also permit deportation for convictions of various standalone offenses.

Thus, whether a noncitizen is subject to deportation for a crime is not determined by whether the crime is labeled an “aggravated felony.”  Instead, the primary impact of the “aggravated felony” classification relates to the increased immigration penalties attached to the label, including the inability to apply for most forms of relief from removal.  

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.

Conclusion

In the words of the Supreme Court, immigrants convicted of an “aggravated felony” face the “harshest deportation consequences.” As Congress ponders proposals to include even more crimes under the definition of “aggravated felony,” it must consider the extremely severe consequences that will result. The immigration laws already include numerous provisions that make noncitizens with certain criminal histories—including very minor convictions—subject to deportation. Once a crime is labeled an “aggravated felony,” however, deportation is all but assured, regardless of the harm that would result or evidence of rehabilitation.   

Blumsack & Canzano
In a world of uncertainty, you and your family may want to maximize their choices—both in terms of lifestyle and opportunities. Whatever your motivation, Blumsack & Canzano always has trusted immigration advisors. We deliver comprehensive solutions and a seamless immigration experience for you, your family, and your advisors around the world.

The experienced immigration lawyers at Blumsack & Canzano provide various legal services to employers, employees, individuals, and families in the Boston area and other areas. Immigration issues are complex, and if they are not handled properly, they may have serious impacts. We have an in-depth understanding of immigration law and are committed to providing customers with comprehensive solutions in all areas of immigration law. 

Related issues may involve other legal proceedings. To discuss the circumstances of a matter, please contact Blumsack & Canzano.

Coordinating related legal issues

Keep charging documents, hearing notices and existing orders together, with their dates clearly identified. Responding to a criminal case and examining the basis for an arrest are related but distinct tasks. The Massachusetts rule on initial appearance and arraignment provides procedural context; one hearing should not be treated as resolving every issue in the case.

When information comes through another person, identify the original observer, the person recording the statement and the stage at which it is used. Reported information supporting an arrest is not automatically equivalent to evidence offered at trial. Review the Massachusetts Guide to Evidence and preserve complete recordings, reports and context rather than relying on an isolated quotation.

Organize the chronology, recordings and witness information by source. Criminal-case evidence preparation may overlap factually with a civil dispute arising from the same event, but the disclosure rules differ. For the criminal case, review the Massachusetts rule on prosecution discovery before deciding how materials should be requested or used.

A noncitizen facing criminal issues also needs a separate immigration review. Immigration classifications such as aggravated felonies cannot be determined solely from a state offense label. Current status and future applications require consideration of the disposition and complete record. The USCIS green-card category information helps identify the application context, without resolving the consequences of a particular criminal history.

Safety arrangements, criminal allegations and child-related issues require separate attention during a family conflict. A domestic-violence-related case does not replace applications or orders in family court. Keep all court documents and use the Massachusetts family-court resources to identify the proceedings involved. In an immediate emergency, seek emergency assistance rather than waiting for a website inquiry to be answered.

A criminal matter may affect work or professional arrangements, but consequences should not be assumed before the facts are checked. Review criminal-case records separately from employment policies and workplace notices. The Massachusetts criminal procedure rules provide court context. Before making statements to an employer, school or other institution, compare the actual question with the existing records.

Evidence preparation involves more than collecting screenshots. Proving disputed facts requires attention to the source and completeness of records and what each witness actually knows. If the events also involve criminal allegations, disclosure decisions need separate review. The Massachusetts Guide to Evidence provides a useful framework, while admissibility must be assessed in the particular proceeding.

Procedure affects both document preparation and scheduling. Civil claims and criminal proceedings should not be managed using the same assumptions about deadlines. Record the court, case number and service date, then consult the relevant court rules and standing orders. Ongoing negotiations should not be treated as proof that a court requirement has been suspended.

After an injury, document the event, treatment and financial effects separately. An injury-claim assessment needs a reliable chronology, while proof of responsibility and damages depends on the evidence and procedure. The Massachusetts Guide to Evidence provides a framework for those questions. Preserve original photographs and statements so that editing does not remove their context.

Preserve original records when litigation becomes a realistic possibility, and distinguish documents already available from evidence held by others. Pre-dispute document review serves a different function from discovery in litigation. The Massachusetts discovery resources help frame requests around disputed facts, so that useful evidence is not buried in unrelated material.