Aggravated felonies are a class of crimes with serious immigration consequences for non-U.S. citizens. Federal law designates some 30 crimes as aggravated felonies. These include violent felonies such as murder, rape and kidnapping.
But a crime does not need to be a felony to be considered an aggravated felony. It doesn’t even need to be violent, though many violent crimes are included.
An aggravated felony is whatever Congress says it is at any given time. Under federal law, many seemingly low-level drug crimes and white collar crimes count as aggravated felonies.
The Supreme Court decision in Sessions v. Dimaya
On April 17, 2018, the United States Supreme Court published its decision in a case known as Sessions v. Dimaya. In that decision, the court held that part of the federal law defining a “violent felony” was unconstitutionally vague. We discuss the holding at length in Section 7, below.
But in essence, the decision means that certain people convicted of an aggravated felony may be able to challenge attempted removal on constitutional grounds. Specifically, these are people who were convicted of an offense that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
The court held that this definition — set forth in 18 U.S.C. 16(b) — was “unconstitutionally vague.”
The result is that people convicted of certain crimes — such as the California crime of burglary — that are not by definition necessarily violent, may not be deportable.
Consequences of an aggravated felony conviction can include:
- Deportation (“removal”) from the U.S.
- Denial of permission to enter the U.S.,
- A permanent ban on seeking a U.S. visa or green card, and
- Inability to receive asylum status in the U.S.
But all hope is not lost. Our criminal and immigration lawyers know how to fight aggravated felony charges. We can also help you with post-conviction relief, such as a habeas corpus petition or an I-212 hardship waiver.
To help you better understand the immigration consequences of an aggravated felony, we explain, below:
- 1. What is an aggravated felony?
- 1.1. Crimes that are always aggravated felonies
- 1.2. Crimes with sentences of one year or longer
- 1.3. Crimes involving more than $10,000
- 1.4. The difference between an aggravated felony and a crime of moral turpitude
- 1.5. What if I was convicted of an aggravated felony outside the state?
- 1.6. What if my crime was not an aggravated felony when I was convicted?
- 2. Will I get deported for an aggravated felony?
- 3. Additional consequences of an aggravated felony conviction
- 4. Can I stay in / enter the U.S. if I get my conviction expunged?
- 5. Post-conviction relief following an aggravated felony conviction
- 5.1. Habeas corpus relief for immigrants
- 5.2. Appeal to reduce sentence
- 5.3. Motion to vacate an aggravated felony conviction
- 5.4. I-212 hardship waiver
- 5.5. “Withholding of removal” / U.N. Convention Against Torture (CAT) protection
- 5.6. “T” or “U” visas for victims of human trafficking / serious crimes
- 6. What happens if I reenter the U.S. after an aggravated felony conviction?
- 7. The Supreme Court decision in Sessions v. Dimaya
An “aggravated felony” is a crime designated as such in the federal “Immigration and Nationality Act” (also known as the “Hart–Celler Act”).
The complete list of aggravated felonies is set forth in 8 U.S. Code 1101(a)(43). These crimes fall into three basic categories:
- Crimes that are always aggravated felonies;
- Crimes that are aggravated felonies only when the offender receives a sentence of one year or longer; and
- Crimes that are aggravated felonies only when the loss to the victim is more than $10,000.
Let’s take a closer look at each of these categories.
Certain crimes are almost always aggravated felonies. They do not depend on the loss to the victim or sentence the offender receives.
Crimes in this category include (but are not limited to):
- Child pornography,
- Disclosure of classified government information,
- Drug trafficking,
- Human trafficking,
- Lewd acts with a minor child,
- Owning or running a house of prostitution,
- Rape, and
Some crimes count as aggravated felonies only when the offender receives a jail or prison sentence of at least one year. Crimes in this category include:
- “Crimes of violence” (as defined in 18 USC 16),
- Obstruction of justice,
- Racketeering (RICO violations),
- Receipt of stolen property, and
Some federal and state white-collar crimes are aggravated felonies only if the victim’s losses exceed $10,000. These include:
- Money laundering, and
- Tax evasion.
Crimes of moral turpitude make up another class of deportable (removable) crimes under U.S. immigration law.
U.S. immigration law provides no specific definition of this term. In general, however, a crime of moral turpitude is one that involves:
- Dishonesty, or
- Socially unacceptable behavior that harms others.
Many aggravated felonies also count as crimes of moral turpitude. So even if Congress takes them off the list of aggravated felonies, they could still lead to deportation.
For more information, please see our article on Crimes of Moral Turpitude.
The term “aggravated felony” applies to any offense listed in 8 U.S. Code 1101(a)(43) regardless of where the crime(s) occurred. It includes violations of:
- California law,
- The law of any other U.S. state or territory,
- Federal law, or
- The law of a foreign country (if the term of imprisonment was completed within the previous 15 years).
Congress is frequently adding new offenses to the list of “aggravated felonies.” The designation applies retroactively to prior convictions.
If you are a non-U.S. citizen who was convicted of a crime that is currently on the list you may be deportable – even if the offense was not an aggravated felony at the time.
U.S. Immigrations and Custom Enforcement (“ICE”) officials have discretion over which cases to prosecute. Not every removable alien actually gets deported.
But your chances of staying in the U.S. are better if you are here lawfully.
Let’s take a closer look at the difference between how the U.S. immigration system treats undocumented and documented aliens.
In the past, ICE largely ignored non-citizens whose only offense was being in the U.S. unlawfully.
Current White House immigration policy continues to prioritize the deportation of aliens with a criminal record. But now even non-citizens caught by ICE face deportation.
What is worse, as discussed below, immigrants who cannot prove legal residency have no right to a hearing before they are deported.
The U.S. Supreme Court is set to hear several cases concerning the rights of non-citizens in June 2017.
For now, we can only recommend that non-citizen residents check back here and on our blog regularly for updates.
Non-citizens who are lawful permanent residents (“green-card” holders) or who hold valid U.S. visas have the benefit of the court system. The U.S. can deport such persons only if they are convicted of a “removable offense.”
Thus the best way for documented immigrants to avoid deportation is to avoid conviction in the first place.
The earlier in the criminal process you retain a lawyer, the more options you have. Our experienced criminal lawyers can often get charges dropped or reduced to a non-deportable offense through a plea bargain.
If that fails, we will fight your case vigorously at trial in front of a jury or a bench trial in front of a judge. We may also be able to obtain “post-conviction” relief on appeal or through a motion for habeas corpus, as discussed below.
Non-citizens who are in the U.S. lawfully have the right to a hearing before the U.S. can deport them. They also have the right to appeal an adverse decision with the Board of Immigration Appeals (BIA).
People in the U.S. unlawfully, however, do not always have the right to a hearing before removal. Under so-called “expedited removal,” certain non-citizens can be deported without a hearing.
Technically, people in the U.S. lawfully are not subject to expedited removal. But taking advantage of court access involves being able to prove lawful entry on short notice. Thus all non-citizens should be aware of what “expedited removal” entails.
Let’s take a closer look what expedited removal means for non-resident aliens.
Expedited removal allows ICE to skip the court process and summarily deport certain people without a hearing. People subject to expedited removal do not have the right to a lawyer — or even a phone call.
In the past, the only people subject to expedited removal were those who were caught both:
- Within 100 miles of the border, and
- Within 2 weeks of unlawfully entering the U.S.
But under a new executive order signed by Donald Trump, expedited removal applies:
- Throughout the United States (not just near the border), and
- To anyone who cannot produce documentation proving they have been in the country continuously for at least two years.
If someone can’t produce the necessary documentation when ICE apprehends them, the U.S. can deport that person in as little as 24 hours — even if they are actually here lawfully.
You can establish residency through items such as receipts, phone records, and government-issued identification.
But remember – to qualify for a hearing, you must be able to prove you have been in the U.S. continuously for two years.
You may wish to consult with an experienced California “crimmigration” lawyer for help determining whether your documentation is adequate.
Removal is not the only consequence of an aggravated felony conviction. An aggravated felony conviction also affects a non-citizen’s right to obtain a visa or asylum protection in the United States.
Visas and green cards are not available to people with an aggravated felony conviction.
In addition, anyone with an aggravated felony conviction who applies for a visa or green card while in California faces immediate deportation.
Immigrants who commit an aggravated felony may not become U.S. citizens. This is true even if the immigrant already has a visa or green card at the time of the offense.
Foreign nationals are not eligible for asylum status if they committed an aggravated felony.
They may, however, be eligible for withholding of removal or CAT protection, as discussed below.
No. In most cases, people who are deported for an aggravated felony face a permanent ban on reentry.
You may, however, be able to apply for an I-212 hardship waiver, as discussed below.
An expunged conviction remains on someone’s record for purposes of U.S. immigration law.
To obtain lawful admission to the U.S. after getting a conviction expunged in California, the convict must apply for a I-212 waiver of inadmissibility, as discussed below.
Certain types of “post-conviction relief” may help an immigrant remain in the United States following an aggravated felony conviction.
Let’s take a closer look at the qualifications needed for the most common forms of post-conviction relief.
A writ of habeas corpus challenges the legality of keeping someone in custody.
In an aggravated felony case, habeas corpus is usually granted when there were serious errors during the immigrant’s trial or hearings. Such errors can include (without limitation):
- An arrest in violation of federal or California search and seizure laws,
- Ineffective assistance of counsel, or
- Misconduct by the prosecutor.
An experienced California defense attorney may be able to persuade a judge to reduce an immigrant’s sentence on appeal.
If judge reduces the sentence to a less than one year, it may no longer qualify as an aggravated felony.
If conviction occurred in a federal court, the defense lawyer can file a motion to vacate the sentence.
Grounds for vacating an aggravated felony conviction in federal court are similar to grounds for habeas corpus relief. They include (but are not limited to):
- The defendant had ineffective assistance of counsel,
- The sentence was unconstitutional, or
- The police coerced the defendant’s confession.
The Department of Homeland Security has the discretion to waive inadmissibility after an aggravated felony conviction if:
- The aggravated felony was not a violent or dangerous offense,
- The crime did not involve a controlled substance, and
- Deportation or denial of entry would result in extreme hardship to U.S. family members.
To apply for a waiver, the applicant must submit an I-212 Application for Permission to Reapply for Admission.
Homeland Security will consider three main factors when deciding whether to approve a non-immigrant waiver application:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant’s prior violations; and
- The reason the applicant wishes to enter the United States.
Evidence that weighs in favor of granting an I-212 application includes (but is not limited to):
- Length of time and close family ties in the U.S.;
- Hardship to relatives who are lawfully in the U.S.;
- Evidence of reformation and rehabilitation; and
- Evidence of good moral character.
Factors that weigh against granting an I-212 application include (but are not limited to):
- Evidence of bad moral character or ongoing unlawful activity;
- Unauthorized employment in the United States; or
- Serious violations of U.S. immigration law with no evidence of rehabilitation.
People who would face serious danger in their home countries can apply for special mandatory protection from deportation. The available programs are:
- “Withholding of removal,” and
- The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).
Under these programs, the U.S. government is prohibited from removing someone to a country where:
- The person’s life or freedom would be threatened, or
- The person would be subject to torture.
You may qualify for withholding of removal as long as your offense is not considered a “particularly serious” crime. A crime is considered “particularly serious” if it:
- Is an aggravated felony (or felonies) with a total sentence of more than five years, or
- An immigration judge or asylum referee reasonably considers the crime particularly serious.
You may qualify for CAT protection if you can prove that it is likely or not you would face torture if returned to your home country. This is the only requirement for cat relief.
But the relief granted by withholding of removal or CAT protection is very narrow. It applies only to the specific country or countries where you are likely to be persecuted or tortured. You can still be removed to a safe third country (if one will take you).
For more information please contact our office for a free consultation. Or visit the U.S. Citizenship and Immigration page on “Withholding of Removal.”
People convicted of aggravated felonies may be eligible for a “T” or “U” visa. These visas are available to victims of human trafficking or serious crimes such as domestic violence or sexual assault.
“T” visas are available to people who are in the U.S. as the result of human trafficking. These victims will need to show that their removal from the U.S. would result in “extreme hardship involving unusual and extreme harm.”
People who were already in the U.S. when they became victims of a serious crime can apply for a “U” visa. U visa applicants must prove that they suffered “substantial physical or mental abuse” as a result of the crime.
In both cases, to be eligible, the victim must cooperate with U.S. law enforcement to investigate and prosecute the crime(s).
“T” and “U” visas allow eligible victims to remain and work in the U.S. temporarily – usually for four years. Provided certain additional conditions are met, the visa holder may apply for a green card after three years.
To get a “T” or “U” visa, people with an aggravated felony conviction will also need to be eligible and apply for an I-212 waiver.
To learn more about these programs, please contact our office for a free consultation. Or refer to the U.S. Department of Homeland Security’s U and T Visa Law Enforcement Resource Guide
A foreigner who reenters the U.S. illegally after an aggravated felony conviction faces up to 20 years in prison.
This applies even to persons whose aggravated felonies were relatively minor offenses — such as possession for sale of marijuana.
On April 17, 2018, the United States Supreme Court held in Sessions v. Dimaya that part of the federal definition of a “violent crime” is unconstitutionally vague. The case dealt with 18 U.S.C. 16, which provides:
“The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
Dimaya is a lawful permanent resident of the United States. He had two convictions for first-degree burglary in California. After his second conviction, the U.S. government sought to deport him as an aggravated felon.
An Immigration Judge and the Board of Immigration Appeals held that California first-degree burglary was a “crime of violence” under 18 U.S.C. 16(b).
The term “crime of violence” is unconstitutionally vague under U.S. law
The Supreme Court held that 18 U.S.C. 16(b) is unconstitutionally vague and, therefore, unenforceable. It left intact the definition of “crime of violence” under 18 U.S.C. 16(a).
Therefore, a defendant may not be deported for a crime of violence unless:
- The crime involves the use, attempted use, or threatened use of physical violence, or
- There is another basis on which the defendant’s crime is a deportable offense (for instance because the offense also counts as a “crime involving moral turpitude.”
If you believe you may have been wrongly served with a deportation notice based on 18 U.S.C. 16(b), we invite you to contact our California deportation lawyers for a free consultation.
Charged with an aggravated felony in CA? Call us for help…
If you have been arrested for an “aggravated felony” we invite you to contact us for a free consultation.
Our California immigration lawyers will fight to keep you out of jail and in the U.S.
- 18 USC § 16 provides: “The term ‘crime of violence‘ means— (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop¬erty of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
- U.S. Immigration and Nationality Act (“INA”) § 212(a)(9)(A)(ii).
- Id. § 208(b).
- See INA Sec. 208.16 — withholding of removal under INA 241(b)(3)(B).
- See 8 USC §§ 1101(a)(15)(T) and (U).
- 8 USC § 1326(b)(2).