An “aggravated felony” is a category of criminal offense with a terrible-sounding name that is defined in the Immigration and Nationality Act.  See N. Tooby & J. Rollin, Aggravated Felonies § 1.3 (hereinafter Aggravated Felonies). [1] It contains some 35 offenses, some of which contain many more. If a conviction qualifies as an aggravated felony, it triggers the worst of all possible immigration consequences, including mandatory deportation, mandatory detention, and disqualification from any discretionary relief from removal.

 

Definition of an Aggravated Felony

 

Since it was first added in 1988, this term has suffered great expansion, from truly aggravated felonies, to mere serious felonies, to ordinary and then minor felonies, and finally to encompass a number of what can only be called “minor misdemeanors.”  See Aggravated Felonies § 1.4 (2006).[2]   Any conviction that falls within this definition is an aggravated felony, regardless of the date of commission or conviction.[3]   If it fits the definition, it constitutes an aggravated felony even if it is a misdemeanor.[4]

 

The immigration statute defining “aggravated felonies” contains 35 definitions, some of which themselves contain many individual criminal offenses.  For a quick checklist of the names of the aggravated felonies, see Aggravated Felonies, Appendix C.  A comprehensive definition of this term is contained in a 1000-page practice manual, Aggravated Felonies, supra. 

 

Many convictions, however, do not meet any of the aggravated felony definitions.  It is important to learn the rules for determining whether a conviction qualifies as an aggravated felony conviction, to identify convictions that do not fit the definition.  In addition, more and more criminal lawyers are learning how to avoid aggravated felony convictions by changing the language of the criminal offense to which a plea of guilty or no contest is entered. See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005). 

 

About half of the aggravated felonies are aggravated felonies only if a sentence of one year or more has been imposed (regardless of whether it is suspended).  The other half are aggravated felonies regardless of sentence.  Therefore, one of the most important things criminal counsel can do – in those cases where sentence matters – is to obtain a sentence less than one year.

 

 

Consequences of an Aggravated Felony

 

At the same time, Congress — trading on the true reprehensible title of the category — has attached worse and worse consequences to those who fall within the definition of the term.  First, it constitutes a ground of deportation for noncitizens who suffered one or more aggravated felony convictions.  See Aggravated Felonies § 1.6.   An immigrant who has not yet naturalized to U.S. citizenship can be deported for one aggravated felony conviction.  Because an aggravated felony conviction also disqualifies an immigrant from nearly all forms of relief from deportation that might otherwise be available in removal proceedings, it causes “mandatory deportation.”  Once deported, the noncitizen will never be able legally to return to the United States to live. 

 

Second, an aggravated felony conviction disqualifies noncitizens in immigration court from an increasing number of forms of relief as well as putting them at risk of additional adverse immigration consequences.  See Aggravated Felonies § 1.7.

 

Third, it serves as a trigger for the deprivation of a great number of procedural rights during removal proceedings.  See Aggravated Felonies § 1.8. 

 

Finally, an aggravated felony conviction has two serious sentencing consequences for noncitizens convicted of illegal re-entry after deportation: it increases the statutory maximum federal prison term to 20 years, and it increases the base offense level of that offense by up to 16-levels, in effect doubling or tripling the prison term imposed.  See Aggravated Felonies § 1.9.

 

 

Solutions to Aggravated Felony Problems

 

Immigration lawyers must learn the rules so they can argue in immigration court that a given conviction is not an aggravated felony, and so avoid the aggravated felony immigration consequences.  These arguments are given in Aggravated Felonies, supra.

 

Immigration lawyers must also check the record of conviction very carefully to see if the original criminal lawyer succeeded in obtaining a non-aggravated felony conviction in the first place.

 

Finally, where a conviction does qualify as an aggravated felony, the immigrant may need to seek post-conviction relief in immigration court, so the aggravated felony conviction can be vacated on a ground of legal invalidity, which will eliminate the conviction and avoid its adverse immigration consequences.  See N. Tooby, California Post-Conviction Relief for Immigrants (2009); N. Tooby, Post-Conviction Relief for Immigrants (National Edition 2004).

 

This office can assist immigrants who are charged with, or have been convicted of, an aggravated felony in several ways:

 

Information 

We provide the most extensive collection of information on what is and is not an aggravated felony in the world, in our newsletters, practice manuals, website, and seminars.

 

Consultation 

We can offer a consultation, and examine the records from the criminal court, to give a reliable opinion on whether a given conviction is or is not an aggravated felony.  We can also offer arguments that an immigration lawyer can use in immigration procedures to argue that the conviction does not qualify as an aggravated felony.

 

Elimination of the Conviction

If a conviction is causing damage as an aggravated felony, we can seek post-conviction relief anywhere in the country to reopen the criminal case, vacate the aggravated felony conviction, and obtain a dismissal or alternative plea bargain that does not cause these damaging immigration consequences. Learn more about our Legal Services.

 

 

Aggravated Felony Resources

 

N. Tooby & J. Rollin, Aggravated Felonies (2006) is a 1000-page treatise on all aspects of aggravated felonies. 
    This volume contains a number of valuable appendices on different aspects of aggravated felonies:

• Appendix A:  Category Case Index, takes all decisions of all courts defining what is, and is not, an aggravated felony, and organizes them according to the aggravated felony category within which they might or might not fall.  These aggravated felony categories are organized in alphabetical order. 

• Appendix B:  Crime Case Index, labels each decision concerning whether a specific criminal conviction constitutes an aggravated felony under a certain category according to the common name of the criminal conviction involved. 

• Appendix C:  Aggravated Felony Checklist, contains a quick and easy alphabetical index of all aggravated felony categories listed in the statute defining aggravated felonies.

  Appendix D:  Evolution of the Aggravated Felony Statute, contains a chronological legislative history of the development of the aggravated felony list, with notes on the legislation introducing primary immigration consequences of an aggravated felony conviction.

• Appendix E:  Checklist of Federal Drug Offenses, contains a list of all offenses defined in the Federal Controlled Substances Act, 21 U.S.C. §§ 801-971, to use in determining whether a conviction constitutes an aggravated felony “drug trafficking crime” under INA § 101(a)(43)(B).

• Appendix F:  Non-Substantive Offenses, contains a list of all non-substantive offenses (such as aiding and abetting, conspiracy, and solicitation) that are specifically listed in grounds of deportation or inadmissibility, for use in determining whether Congress meant to exclude a given non-substantive offense by failing to list it in the particular deportation ground under consideration.

 

N. Tooby & J. Rollin, Criminal Defense of Immigrants (2007), contains a 250-page chapter on aggravated felonies.

 

N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005).  This volume contains detailed instructions on how to avoid deportable aggravated felony convictions in criminal court by carefully constructing the record of conviction, and thousands of arguments immigration lawyers can use to obtain immigration court rulings that a given conviction is not an aggravated felony conviction.

 

Our office keeps these books current on a monthly basis by posting case law updates on www.NortonTooby.com, organized by section number (e.g., § 5.21) for ease of reference. Get access to these case law updates by either purchasing one of our practice manuals (allows you to view updates for individual practice manuals purchased) or by subscribing to our Premium Resources (allows you to view updates for ALL of our practice manuals).

 

 

[1] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).
[2] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).
[3] See CRIMINAL DEFENSE OF IMMIGRANTS § 19.21.
[4] The only exception is that a crime of violence aggravated felony, under 18 U.S.C. § 16(b), must be a felony to be an aggravated felony.  INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).  See CRIMINAL DEFENSE OF IMMIGRANTS § 4.4(E)(7).