Aggravated Felonies

 

(A)  The Bad News.  One aggravated felony conviction bars a noncitizen from many forms of immigration relief and benefits.  If the noncitizen is not a lawful permanent resident, but is convicted of an aggravated felony, s/he is subject to expedited administrative removal by the DHS directly, without ever appearing before an immigration judge.  See § 2.12, infra.[24]

 

A long-term lawful permanent resident in removal proceedings is barred from eligibility for “cancellation of removal” to waive grounds of inadmissibility and deportability.[25]  See § 2.4, infra.  An aggravated felony also constitutes a disqualification from a different form of “cancellation of removal” for non-permanent residents.  See § 2.5, infra.[26]

 

An aggravated felony bars a noncitizen from receiving the benefits of the

Family Unity Program.  See § 2.13, infra.

 

An aggravated felony conviction suffered on or after November 29, 1990, constitutes a permanent bar to showing Good Moral Character.  See § 2.14, infra.[27]  A murder conviction at any time also permanently bars Good Moral Character.  Note that an applicant convicted of an aggravated felony before November 29, 1990 is not permanently barred from establishing Good Moral Character.[28]

 

            A noncitizen who has resided continuously in the United States since January 1, l972 may become a lawful permanent resident through “registry,” if s/he can show Good Moral Character and show that s/he is not inadmissible, and is not ineligible for United States citizenship.[29]  It may be possible for an aggravated felon to qualify for registry under limited circumstances.  See § 2.34, infra.

 

A noncitizen who is removed following an aggravated felony conviction suffers permanent inadmissibility.  See § 2.16, infra.

 

An aggravated felony conviction will bar a noncitizen from both forms of legalization established in 1986, but only if the conviction is in fact a felony.  If it is a misdemeanor, the noncitizen is not disqualified from eligibility for these programs unless the noncitizen has suffered a total of three misdemeanor convictions.  See § § 2.20-2.22, infra.

 

Conviction of an aggravated felony is a bar to relief under NACARA.  See § 2.23, infra.

 

An aggravated felony conviction, which occurred on or after November 29, 1990, renders a noncitizen permanently ineligible to naturalize.  A murder conviction bars naturalization regardless of the date of conviction.  See § 2.24, infra.[30]

A person convicted of an aggravated felony may not apply for or be granted political asylum.  See § § 2.30-2.32, infra.[31]

 

A person who, since being admitted as a permanent resident, has been convicted of an aggravated felony, is not eligible for a waiver of inadmissibility under INA § 212(h).  See § 2.45, infra.

[24] 8 U.S.C. § 1228.

[25] INA § 240A(a), 8 U.S.C. § 1229b(a).

[26] See INA § § 240A(b)(1), (c), 8 U.S.C. § § 1229b(b)(1), (c).

[27] See Immigration Act of 1990 § 509(a), amending INA § 101(f)(8), 8 U.S.C. § 1101(f)(8).

[28]  Immigration Act of 1990, § 509.

[29]  INA § 249, 8 U.S.C. § 1259.

[30]  Immigration Act of 1990, § 509(b) (aggravated felony convictions dating before November 29, 1990 are not permanent bars to showing Good Moral Character); MTINA § 306(a)(7) (murder is a permanent bar regardless of date of conviction).  See also Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996); Castiglia v. INS, 108 F.3d 1101 (9th Cir. 1997).

[31] INA § 208(d), 8 U.S.C. § 1158(d), added by Immigration Act of 1990, § 515(a)(1).  Feroz v. INS, 22 F.3d 225 (9th Cir. Apr. 19, 1994)(8 U.S.C. § 1158(d) disqualifying aggravated felon from eligibility for political asylum applied retroactively); see also Martins v. INS, 972 F.2d 657, 660 (5th Cir. 1992) (finding that Congress inserted the “before, on, or after” language into § 1158(d) in order to bar all aggravated felons from asylum, regardless of the dates of their convictions); Arthurs v. INS, 959 F.2d 142, 143 (9th Cir. 1992) (BIA correctly applied 8 U.S.C. § 1105a(a)(3) (1988 & Supp. 1992), which renders aggravated felons ineligible for an automatic stay of deportation, retroactively to aggravated felony convictions regardless of the date of conviction).