What Makes a Crime an “Aggravated Felony”?

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An offense need not be “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” for purposes of federal immigration law. Instead, an “aggravated felony” is any crime that Congress decides to label as such. As two prominent immigration judges recently noted, numerous “non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws.”

When it was initially enacted in 1988, the term “aggravated felony” referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices.  Congress has since expanded the definition on numerous occasions, particularly under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 but has never removed a crime from the list. Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. Even offenses that sound serious, such as “sexual abuse of a minor,” can encompass conduct that some states classify as misdemeanors or do not criminalize at all, such as consensual intercourse between a 17-year-old and a 16-year-old.

In the words of the Supreme Court, immigrants convicted of an “aggravated felony” face the “harshest deportation consequences.” As Congress ponders proposals to include even more crimes under the definition of “aggravated felony,” it must consider the extremely severe consequences that will result. The immigration laws include numerous provisions to ensure that criminals are not allowed to remain in the United States, yet also recognize that exceptions should be made in particularly compelling cases, especially when an immigrant’s removal will create hardship for U.S. citizens. Once a crime is labeled an “aggravated felony,” however, deportation is all but assured and individualized determinations are rarely possible to make.

To view the description of crimes that are considered aggravated felonies under immigration law, go to the Immigration and Nationality Act at I.N.A. § 101(a)(45). This list includes, in brief summary:

  • murder
  • rape
  • sexual abuse of a minor (which can include statutory rape)
  • drug trafficking
  • trafficking in firearms or destructive devices
  • various other offenses concerning firearms or explosive materials
  • racketeering
  • money laundering of more than $10,000
  • fraud or tax evasion involving more than $10,000
  • theft or violent crime with a sentence order of at least one year
  • perjury with a sentence of at least one year
  • kidnapping
  • child pornography
  • trafficking in persons or running a prostitution business
  • spying, treason, or sabotage
  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles
  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
  • alien smuggling, and
  • obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year.

This is not a complete list of potential aggravated felonies, and you should not attempt to evaluate your or anyone’s situation based upon it.

2016-11-11T21:38:33+00:00

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