Post-Conviction Relief for Immigrants

Certain felonies constitute aggravated felonies only if a sentence of one year or more is imposed.  Other felonies are considered aggravated felonies regardless of the sentence imposed.[13] 

The immigration consequences of an aggravated felony conviction are the most serious of any conviction under immigration law.  One conviction will force the immigration authorities to strip away the client’s lawful permanent resident status and banish him or her forever away from home, job, and family, regardless of the individual circumstances of the case.  The noncitizen will be held in mandatory immigration detention once the criminal sentence has been served; s/he will be barred from receiving any discretionary relief in immigration court, and will be subject to a federal prison sentence of up to 20 years upon illegal re-entry into the United States after deportation.  For those convicted of an offense on the list for which a one-year sentence is required, those consequences can be averted if counsel can go back into the original criminal court, vacate the sentence originally received, and obtain a different sentence that will avoid deportation.

The basic rule regarding these particular aggravated felony convictions is as follows:  If a noncitizen, who is convicted in state or federal court of one or more common crimes on the “one-year” list, receives a sentence imposed of one year or more (even if execution is suspended), s/he will be considered an aggravated felon by the immigration authorities.  Vacating or reducing the one-year sentence imposed to a sentence of less than one year, however, will eliminate the aggravated felony conviction.

Remember, however, that a single conviction may fall into more than one damaging immigration category, and can cause immigration problems under several different grounds of deportation or inadmissibility.[14]  For this reason, even if a conviction is on this list of one-year offenses, and even if counsel manages to reduce the sentence to a sentence of less than one year, it is essential to check to make sure the conviction does not trigger adverse immigration consequences under a separate rule.  Avoiding a deportable sentence for the listed aggravated felony convictions, however, is the single most important sentencing technique to save great numbers of noncitizens from deportation.

[13] See N. Tooby, Criminal Defense of Immigrants (2003), for a full discussion of all crime-related grounds of deportation and inadmissibility, with suggestions for handling each stage of a criminal case involving a noncitizen defendant, so as to avoid them.

[14] The most common damaging immigration categories into which the INA groups criminal convictions are: aggravated felony convictions, convictions of crimes involving moral turpitude, controlled substance convictions, firearm convictions, and domestic violence convictions.  There are some grounds of deportation and inadmissibility that are based on conduct, rather than a conviction, but they do not arise very often.  See N. Tooby, Criminal Defense of Immigrants, Chap. 2 (2003).