Aggravated Felony

Aggravated Felony

What is an Aggravated Felony?

The term “Aggravated Felony” is a term of art used in the Immigration and Nationality Act (INA). An aggravated felony does not necessarily have to be felony, nor does it have to be aggravated as that term is usually used in the Criminal Courts.

Under Section 101(A)(43) of the INA, Aggravated Felonies include convictions for: murder, rape, sexual abuse of a minor, drug trafficking, a crime of violence in which a term of imprisonment of at least a year is imposed, a theft or burglary offense for which a term of imprisonment of at least 1 year is imposed, a crime of fraud or deceit in which the loss to the victim exceeds $10,000, etc. This is not an exhaustive list of aggravated felonies, but it includes many of the common offenses that cause non-citizens to be classified as aggravated felons.

When a non-citizen is classified as an aggravated felony, severe consequences will usually follow. For example, a Legal Permanent Resident (LPR) who is convicted of committing an aggravated felony will not be eligible for a form of relief from removal called cancellation of removal, which is filed on Form EOIR-42A (http://www.justice.gov/eoir/eoirforms/instru42a.htm). Cancellation of removal is a waiver that allows those who committed criminal immigration violations to remain in the U.S. if they can show rehabilitation, among other factors.

An LPR classified as an aggravated felon may also be ineligible for bond while Immigration Court Proceedings are pending. This is important because Immigration charges are Civil in nature, and the administrative detention which can result may be lengthy (lasting years in some cases), and many times is longer than the actual jail term imposed for the underlying criminal punishment.

If an LPR is removed from the U.S. based on committing an aggravated, there is a 20-year bar to re-entry. If an alien removed as an aggravated felon is caught in the U.S. after having re-entered illegally, he or she could be subjected to criminal prosecution in Federal Court, which can carry stiff mandatory minimum federal prison sentences. The stakes are high when facing charges of being an aggravated felon.

The first step when confronted with such charges is to have an attorney review the underlying criminal records that form the basis of the immigration charges. Sometimes, the records will reveal that the Immigration and Customs Enforcement acted too hastily in bring such charges and that a motion to terminate the Immigration proceedings may be in order. Other times it may be necessary to file a motion in the criminal court to modify a plea or sentence, completely vacate a plea, or even modify part of the record of conviction.

In some instances, there may be relief in Immigration Court despite an aggravated felony conviction, such as for those who may qualify for a waiver under former section 212(c) of the INA, and for those who may qualify for a waiver under INA § 212(h). There are very technical requirements to qualify for these waivers.

The law related to aggravated felonies is very technical, and the legal definitions of terms such as “crime of violence” or “sexual abuse of a minor”, for example, would not be obvious to the layperson. These definitions have been the subject of much litigation. Seizing on a viable legal defense strategy when confronting aggravated felony charges, is the key to beating these charges. Winning strategies frequently involve a coordinated legal effort in the State Criminal Court and the Federal Immigration Court.

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