Aggravated Felonies

Inadmissibility is a condition in which the DHS will not allow a noncitizen to enter the United States, obtain naturalized citizenship, or adjust status to that of lawful permanent resident.  Various events will trigger inadmissibility.

            An aggravated felony conviction does not per se trigger inadmissibility, since there is no “aggravated felony” conviction ground of inadmissibility.  It is possible, however, for an aggravated felony conviction, even though it does not directly trigger inadmissibility, to fall within a different ground of inadmissibility and cause inadmissibility wearing a different hat.  It can do so by falling within either a conviction-based ground of inadmissibility, or a conduct-based ground of inadmissibility.

For a checklist of crime-related grounds of inadmissibility, see N. Tooby, Criminal Defense of Immigrants, Appendix G (2003); N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions, Appendix G (2005).  There are three criminal conviction-based grounds of inadmissibility.  These are discussed below. 

In addition, there are a number of conduct-based grounds of inadmissibility.  Even though an aggravated felony conviction does not in itself trigger inadmissibility, it can establish minimum conduct, through the elements of conviction, that brings the noncitizen within a conduct-based ground of inadmissibility.  The conduct established by the record of conviction should therefore be compared to the conduct-based grounds of inadmissibility to see whether the conviction triggers inadmissibility under these grounds.

For example, a noncitizen is inadmissible if the government has reason to believe s/he has engaged in a money laundering offense described in 18 U.S.C. § § 1957 or 1957.[215]  This is a conduct-based ground of inadmissibility, and does not require a conviction.  If the noncitizen has been convicted of money laundering in violation of one of those provisions, s/he would be considered inadmissible under this conduct-based ground since the conviction establishes as true the conduct triggering the ground of inadmissibility.  (Since the conduct-based grounds do not require a conviction, if a person is arrested for money laundering, but is not convicted, the government could still attempt to establish that the investigation reports, for example, give it “reason to believe” that the noncitizen has engaged in the forbidden conduct, and assert the ground of inadmissibility despite the absence of a conviction.)

            Counsel whose client has an aggravated felony conviction and for whom inadmissibility is important must determine the essential elements of the offense of conviction, from the record of conviction, and compare them to the various conviction- and conduct-based grounds of inadmissibility to determine whether the conviction triggers one or more grounds of inadmissibility.

            This examination must take into account not only the elements of the offense of conviction, but also the contents of the particular record of conviction, and care must be taken in generalizing from a judicial decision involving a particular criminal statute or a particular category of aggravated felony or ground of inadmissibility since the elements of offenses change over time, both by legislative and judicial action, and the contents of a particular record of conviction vary widely from one case to another.

[215] INA § 212(a)(2)(I), 8 U.S.C. § 1182(a)(2)(I).