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An alien convicted for an aggravated felony is removable under the current immigration law. The primary immigration laws are contained in the Immigration and Nationality Act (INA). Much of the enforcement of immigration laws is handled by the Department of Homeland Security (DHS).
In United States immigration law, the term aggravated felony refers to a broad category of crimes that carry certain severe consequences for aliens seeking asylum, legal permanent resident status, citizenship or avoidance of deportation proceedings.
When the category of “aggravated felonies” was added to the INA in 1988, it encompassed only murder and trafficking in drugs or firearms. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) both significantly expanded the scope of crimes that fall into this category. AEDPA added crimes related to gambling and passport fraud; IIRIRA added a great many more crimes, including certain crimes with a sentence of at least a year regardless of whether the sentence had been suspended.
The designation of some crimes as aggravated felonies depends on the length of sentence imposed or amount of money involved. Many general classes of crimes are specifically listed as aggravated felonies.
Examples of listed aggravated felonies include:
- A crime of violence for which the term of imprisonment is at least one year
- A theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year
- Illicit trafficking in drugs, firearms, destructive devices or explosive materials
- An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000
- Most offenses related to alien smuggling
- Murder, rape or sexual abuse of a minor
- Attempt or conspiracy to commit an aggravated felony
The government has the burden of proving that a noncitizen is deportable or removable, so the government must establish by clear, convincing and unequivocal evidence that the alien has been convicted of the alleged crime. “Conviction” as defined by the INA is a formal judgment of guilt entered by a court.
A conviction that is on direct appeal is not final and may not serve as the basis for removal. However, a sentence that has been imposed and subsequently suspended establishes an aggravated felony under the law. However, an initial sentence of imprisonment for one year that is reduced to 364 days or fewer will take an alien outside the definition of aggravated felony.
Barred from Many Forms of Relief
Aggravated felons are barred from many forms of relief found in the INA. An alien convicted of an aggravated felony may not:
- Receive asylum in the United States
- Become a citizen
- Subsequently enter the United States
- Have removal orders cancelled without specific authorization of the Attorney General
Deported through Expedited Procedures
Aliens convicted of aggravated felonies are automatically deported through expedited procedures intended to ensure that the deportation occurs as soon as the alien is released from prison after serving the sentence imposed for the underlying crime. These deportation orders are not subject to review by the federal courts, although federal courts have ruled that they may determine which crimes constitute aggravated felonies.
Misdemeanor under State Law may be Aggravated Felony under Federal Law
Generally, an aggravated felony includes criminal offenses in violation of state or federal laws, but if a conviction was classified as a misdemeanor under state law, it may still be considered an aggravated felony under federal law. If a conviction is a state felony, but not considered a federal felony, then it may not be an aggravated felony.
Limited waivers can be used to prevent the deportation of aliens who have been convicted of an aggravated felony, but lawful permanent residents are ineligible for this waiver. Waivers to overcome a conviction for an aggravated felony are available solely to nonpermanent residents.