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Aggravated Felony Immigration Consequences
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How Aggravated Felonies Can Affect Immigration Status.
A conviction classified as an aggravated felony under U.S. immigration law can have serious consequences for non-citizens, including possible removal and limits on certain forms of immigration relief. The term covers offenses defined by federal immigration law and does not always match how a crime is classified under state or federal criminal law. This guide explains the immigration consequences of aggravated felonies and how a conviction may affect your immigration status and options.
An aggravated felony is a category created by federal immigration law. Despite the name, an offense need not be classified as a felony under state or federal criminal law to fall within this category. The definition includes many types of offenses, such as certain theft, fraud, drug trafficking, violent, and sexual offenses.
The immigration consequences depend on the specific conviction and the person’s immigration history, but they may include:
Removal from the United States: A non-citizen who is convicted of an aggravated felony after admission may be removable under federal immigration law.
Loss of cancellation of removal: An aggravated felony conviction generally makes a lawful permanent resident ineligible for cancellation of removal.
Loss of asylum eligibility: A conviction for an aggravated felony is treated as a particularly serious crime for purposes of asylum and generally bars asylum eligibility.
Limits on withholding of removal: An aggravated felony may also affect eligibility for withholding of removal. The rules differ from those of the asylum bar and can depend on factors such as the offense and the aggregate sentence imposed.
Possible consequences for returning to the United States: Removal after an aggravated felony conviction can create serious restrictions on future admission and may require special permission before a person can lawfully return.
Whether a conviction qualifies as an aggravated felony depends on the offense and the particular aggravated felony category. Some categories depend on factors such as the sentence imposed or the amount of financial loss, while others do not.
Because the immigration classification may differ from the criminal-law label, the exact statute of conviction and other parts of the criminal record can be important. A deportation defense lawyer can help you understand how a conviction may affect your immigration case.
An aggravated felony conviction can limit or eliminate eligibility for several forms of immigration relief. Federal immigration law lists a broad range of offenses as aggravated felonies under 8 U.S.C. § 1101(a)(43), and the consequences depend on the specific offense, immigration status, and benefit sought.
An aggravated felony conviction can affect several forms of immigration relief, including:
Cancellation of removal: Lawful permanent residents convicted of an aggravated felony are generally ineligible for cancellation of removal.
Asylum: A conviction classified as an aggravated felony generally makes a person ineligible for asylum.
Voluntary departure: A person convicted of an aggravated felony is generally ineligible for voluntary departure.
Naturalization: Certain aggravated felony convictions can prevent a person from establishing the good moral character required for naturalization.
Other protections may still be available in limited circumstances. For example, the rules governing withholding of removal and protection under the Convention Against Torture (CAT) differ from those governing asylum.
There is no single waiver that removes the immigration consequences of every aggravated felony conviction. Whether any waiver or other form of relief remains available depends on factors such as the offense, immigration history, lawful permanent resident status, and the specific immigration benefit being sought.
Because different rules apply to different forms of relief, an aggravated felony conviction does not create the same immigration bar in every case.
Lawful permanent resident status does not prevent removal based on an aggravated felony conviction. A green card holder may be placed in removal proceedings if the conviction falls within an applicable ground of deportability.
An aggravated felony can also make a lawful permanent resident ineligible for cancellation of removal, even if they have lived in the United States for many years.
Several details may matter when determining whether an offense falls within the federal aggravated felony definition, including:
The specific criminal statute under which you were convicted
The elements of the offense
The sentence imposed, when the particular aggravated felony category has a sentence requirement
The amount of loss involved, when the applicable category includes a financial threshold
The record of conviction and how the offense compares with the federal immigration definition
Whether the case was prosecuted in state or federal court does not, by itself, determine whether the offense is an aggravated felony. The immigration classification depends on how the conviction fits within the categories established by federal immigration law.
An aggravated felony conviction can lead to serious immigration consequences, including detention and removal proceedings. However, the process varies depending on the offense, the person’s immigration status, and the applicable procedures.
Because aggravated felony cases can involve both criminal and immigration law, the effect of a conviction should be evaluated based on the specific criminal statute, record of conviction, sentence, and the person’s immigration history. An immigration appeal may also be available when an immigration judge issues an adverse decision.
An aggravated felony conviction can affect removal, immigration relief, and future applications for immigration benefits. If you have questions about how a conviction may affect your status, contact Andrew T. Thomas, Attorneys at Law, to discuss your circumstances and available options.
Yes. The term “aggravated felony” is defined by federal immigration law, so an offense need not be classified as a felony under state law. Whether a conviction qualifies depends on how the offense fits within the federal aggravated felony definition, including any applicable sentence or financial-loss requirements.
It can. For aggravated felony categories that depend on the length of the sentence, immigration law generally considers the period of incarceration ordered by the court even if the sentence was suspended. Because not every aggravated felony category has a sentence requirement, the effect of a suspended sentence depends on the particular offense.
Yes. Certain aggravated felony convictions can prevent a lawful permanent resident from establishing the good moral character required for naturalization. The effect can depend on the offense and the date of conviction, so a criminal record should be reviewed before applying for citizenship.
A person may be able to dispute DHS’s claim that a conviction qualifies as an aggravated felony under federal immigration law. Whether the classification can be successfully challenged depends on factors such as the criminal statute, elements of the offense, sentence, and permissible conviction records. The immigration court generally does not retry the underlying criminal case.
Possibly. An aggravated felony generally bars asylum, but different rules apply to withholding of removal and protection under the Convention Against Torture (CAT). Eligibility depends on the conviction and the requirements of the particular form of protection, so an aggravated felony does not automatically eliminate every possible protection from removal.
