Criminal Defense of Immigrants


§ 19.98 B. Eligibility for Relief

Skip to § 19.

For more text, click "Next Page>"

An aggravated felony conviction will render a noncitizen ineligible for most forms of immigration relief, including cancellation of removal for lawful and non-lawful permanent residents,[1167] a waiver of inadmissibility under INA § 212(h),[1168] asylum,[1169] and voluntary departure.[1170] 


Aggravated felony convictions occurring subsequent to April 24, 1996 cannot be waived under former INA § 212(c), and even in the case of older convictions, there are serious limitations as to which aggravated felonies may be waived.[1171]  A noncitizen sentenced to an aggregate term of imprisonment of five years or more for one or more aggravated felony offenses will also be barred from withholding of removal.[1172]  An aggravated felony conviction subsequent to November 29, 1990, is also a permanent bar to Good Moral Character, required for naturalization[1173] and other forms of relief.[1174]


                An aggravated felony conviction may also disqualify a noncitizen from eligibility under the one felony or two or three misdemeanor disqualification rules for Family Unity,[1175] Legalization Programs,[1176] or Temporary Protected Status.[1177]


An aggravated felony conviction will not bar relief under the Convention Against Torture,[1178] or bar a non-LPR from receiving a waiver of inadmissibility under INA § 212(h).[1179]  Aggravated felons may still be eligible for certain types of non-immigrant visas, such as the “S”, “T” and “U” visas,[1180] and may be eligible for a waiver applicable only to non-immigrant visitors.[1181]


                See Chapter 24, infra, for a discussion of other forms of relief.

[1167] INA § § 240A(a), 240A(b), 8 U.S.C. § § 1229b(a), (b).  See § § 24.3-24.6, infra.

[1168] INA § 212(h), 8 U.S.C. § 1182(h).  See § 24.29, infra.

[1169] INA § 208(b)(2)(b); 8 U.S.C. § 1158(b)(2)(b).  See § § 24.18-24.21, infra.

[1170] INA § § 240B(a)(1), (b)(1)(C); 8 U.S.C. § § 1229c(a)(1), (b)(1)(C).  See § § 15.29-15.33, supra.

[1171] INA § 212(c), 8 U.S.C. § 1182(c) (1995).  See § 24.28, infra.

[1172] INA § 241(b)(3)(B)(ii), 8 U.S.C. § 1321(b)(3)(B)(ii).  See § 24.31, infra.

[1173] See § 24.13, infra.

[1174] See § 15.6, infra.

[1175] See § 24.8, infra

[1176] See § § 24.9, et seq., infra.

[1177] See § 24.25, infra.

[1178] See § 24.7, infra.

[1179] See § 24.29, infra.

[1180] See § § 24.14-24.17, infra.

[1181] INA § 212(d)(3), 8 U.S.C. § 1182(d)(3).  See § 24.30, infra.




"DHS regulations specifically provide that the respondent has such a burden only "[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply." 8 C.F.R. 1240.8(d) (emphasis added). Thus, in a case where deportability is not at issue but eligibility for relief is, the regulations clarify that there must first be evidence that indicates that the offense may be an aggravated felony before the burden shifts to the respondent seeking cancellation of removal to establish that his or her offense is not an aggravated felony. Given the categorical approach to determining what state convictions constitute aggravated felonies, where an examination of the state statute does not indicate that the conviction may be an aggravated felony, the burden does not shift. Cf, e.g., Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) (in interpreting similar regulation that imposes burden on asylum applicant of proving by a preponderance of evidence that a mandatory bar does not apply if "the evidence indicates" that the bar applies, court required proof on both elements of the mandatory bar before the burden shifted to the respondent)." Question: Who bears the burden of showing whether an aggravated felony conviction bars relief from removal?

A: See Immigrant Defense Project brief on this subject at:

See also, National Immigration Project advisory ("The Burden of Proof to Overcome the Aggravated Felony Bar to Cancellation of Removal") posted on the NIP website at:

Thanks to Manny Vargas