Aggravated Felonies

This statute created a new ground of deportation for a noncitizen convicted of an aggravated felony at any time after entry.[21]  This is the most serious adverse immigration consequence of having suffered an aggravated felony conviction.  This deportation ground triggers deportation for noncitizens with lawful status, such as Lawful Permanent Residents, refugees, persons holding non-immigrant visas, and, indeed, any noncitizen who has been “admitted” into the United States after inspection by the government.  (Noncitizens who have not been admitted are not deportable under any ground of deportation, but may be excluded regardless of criminal record as being present in the United States without having been admitted.)[22]

The aggravated felony ground of deportation applies no matter how many years have elapsed since the conviction occurred, for convictions occurring in United States federal and state courts.  (Foreign convictions trigger deportation only if the term of imprisonment was completed within the previous 15 years.)[23]  Thus, if a person was convicted of growing a marijuana plant 35 years ago in college, and the government only now discovers the crime, it will trigger deportation even if the person has been a Lawful Permanent Resident of the United States for many years and has substantial equities.

This ground of deportation is described at length in this volume, which contains the greatest concentration of information on this subject anywhere.  Chapter 3 discusses the Elements of this Ground of Deportation.  The basic elements of the aggravated felony ground for removal are:

(a)        Alienage, see § § 3.3, et seq., infra;

(b)        Conviction, see § § 3.31-3.47, infra;

(c)        After the effective date, see § 3.9, infra;

(d)        After admission, see § 3.10, infra; and

(e)        Of an offense qualifying as an aggravated felony.  See Chapters 4 and 5, infra.

Unless each of these elements exists, the noncitizen is not deportable on account of one or more aggravated felonies. 

Whether a particular offense meets the federal “aggravated felony” definition is discussed in more detail in Chapter 5, Aggravated Felony Categories and Appendix A, Category Case Index, an index of cases concerning whether a particular conviction falls within a particular aggravated felony category.

[21] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).  This provision was added by the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7344, 102 Stat. 4181 (Nov. 18, 1988), amending former INA § 241(a), 8 U.S.C. § 1251(a), which has now been recodified as indicated above.

[22] INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).

[23] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (first sentence after (U)), added by Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7341, 102 Stat. 4181 (Nov. 18, 1988).