Aggravated Felonies

 

(B)  The Good News.  The news is not all bad.  Aggravated felons are still eligible for a number of different forms of relief in immigration court.  For example, since an aggravated felony conviction does not constitute a ground of inadmissibility, see § 2.16, infra, it does not directly bar a noncitizen from obtaining lawful permanent resident status through “adjustment of status.”  See § 2.2, infra.  It likewise does not bar obtaining Lawful Permanent Resident status through consular processing.  See § 2.7, infra.  

 

An aggravated felony does not bar relief under the U.N. Convention Against Torture, which prohibits sending a person back to a country where s/he is likely to be tortured. [32]  See § 2.8, infra. 

 

An aggravated felony does not bar Deferred Action Status (DAS), a mechanism in which the noncitizen asks the DHS to postpone or completely dismiss the deportation proceedings.  See § 2.9, infra.

 

An aggravated felon may be eligible to obtain “S” nonimmigrant classification for certain witnesses who supply “critical reliable information” relating to terrorism and criminal activity.  See § 2.26, infra. [33]

It is also possible, under limited circumstances, for an aggravated felon to obtain a “T” visa, which provides temporary and potentially lawful permanent resident status to victims of alien trafficking.  See § 2.27, infra.[34] 

 

It is also possible, under limited circumstances, for an aggravated felon to obtain a “U” visa, a new form of relief for crime victims who serve as witnesses in investigation and prosecution of the crime.  See § 2.28, infra. [35]

 

Any member of Congress can introduce private legislation to create or maintain immigration status for an individual, including one convicted of an aggravated felony, but both houses of Congress must pass this special legislation, and the president must sign it into law, for it to be effective.  See § 2.33, infra.

 

An immigration judge formerly had the discretion to “suspend the deportation” of certain aliens who have resided illegally in the United States for several years, who could then adjust to lawful permanent residency.  If the noncitizen can show Good Moral Character, an aggravated felon may still under some circumstances qualify for this relief.  See § 2.36, infra.

 

Applicants are ineligible for Temporary Protected Status (TPS) if they are inadmissible or have been convicted of two misdemeanors or one felony.  An aggravated felon, however, whose aggravated felony is only a misdemeanor, might still qualify for this form of relief.  See § 2.37, infra.

 

An aggravated felon who can show Good Moral Character may be eligible to obtain lawful permanent residency under the Violence Against Women Act, by self-petitioning or a special form of cancellation of removal (similar to the former suspension of deportation).  See § 2.38, infra. 

 

If a noncitizen has been convicted of an aggravated felony, but is not deportable under the aggravated felony ground (for example, because the person had not been admitted to the U.S. before the conviction), voluntary departure is a critical means of avoiding removal.  It also avoids the very harsh criminal penalties imposed if the person ever re-enters the U.S. illegally after having been removed.  See § § 2.39-2.43, infra.

 

If an aggravated felon was convicted by plea agreement entered into prior to April 24, 1996, s/he remains eligible for a waiver of deportation or inadmissibility under former INA § 212(c) if s/he was eligible at the time of the plea.  See § 2.44, infra.  It may be possible for a very few noncitizens to qualify for § 212(c) relief if convicted from April 24, 1996 to April 1, 1997, but none with aggravated felony convictions can do so.  Ibid.

 

Conviction of one or more aggravated felonies is not necessarily an absolute bar to applying for withholding of removal, as long as the aggregate sentence imposed does not equal five years.  See § 2.47, infra.[36]

[32] Matter of YL, 23 I. & N. Dec. 270 (A.G. 2002) (Attorney General held that applicant must demonstrate that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity), following Matter of SV, 22 I. & N. Dec. 1306 (BIA 2000); Wang v. Ashcroft, 320 F.3d 130 (2d Cir. Feb. 6, 2003) (noncitizen not entitled to CAT since he failed to establish that he is “more likely than not” to be tortured if returned to China).

[33]  Violent Crime and Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Sept. 1, 1994, creating INA § 101(a)(15)(S), 8 U.S.C. § 1101(a)(15)(S).

[34] See INA § 101(a)(15)(T), 8 U.S.C. § 1101(a)(15)(T).

[35] See INA § 101(a)(15)(U), 8 U.S.C. § 1101(a)(15)(U), which provides that a non-immigrant includes:

“(U)(i) subject to § 214(o), an alien who files a petition for  status under this subparagraph, if the Attorney General determines that‑‑

(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);

(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);

(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and

(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States;

(ii) if the Attorney General considers it necessary to avoid extreme hardship to the spouse, the child, or, in the case of an alien child, the parent of the alien described in clause (i), the Attorney General may also grant status under this paragraph based upon certification of a government official listed in clause (i)(III) that an investigation or prosecution would be harmed without the assistance of the spouse, the child, or, in the case of an alien child, the parent of the alien; and

`(iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.”

[36] Steinhouse v. Ashcroft, 247 F.Supp.2d 201 (D. Conn. Feb. 26, 2003) (granting habeas corpus on ground BIA erred in finding an aggravated felony to be a “particularly serious crime”).