Aggravated Felonies in the Immigration Context

• Introduction to Aggravated Felonies in Immigration Law
• Chart of Aggravated Felonies
• General Notes on Aggravated Felonies in Immigration Law
• Aggravated Felonies in Depth
• Aggravated Felony Advice

 

Introduction to Aggravated Felonies in Immigration Law

Immigration law classifies numerous serious crimes as “aggravated felonies” in section 101(a)(43) of the Immigration and Nationality Act (INA) [PDF version]. A conviction for a crime that is defined as an “aggravated felony” in immigration law will have serious adverse immigration consequences for an alien.

These include, but are not limited to:

Inadmissibility [see article];
Deportability [see article] (including Administrative Removal [see article] for non-LPRs);
Ineligibility in most circumstances for regular LPR cancellation of removal [see article] and non-LPR cancellation of removal [see article] (including VAWA [see article] and NACARA cancellation [see article] of removal);
Bar to asylum eligibility [see article] (generally);
Bar to applying for asylum (prior to 1996 only) [see article];
Permanent bar to establishing good moral character (for aggravated felonies committed after November 29, 1990).

Chart of Aggravated Felonies

The following chart of aggravated felonies is courtesy of Volume 12, Chapter 4, of the USCIS Policy Manual:

General Notes on Aggravated Felonies in Immigration Law

For each crime listed under section 101(a)(43) of the Immigration and Nationality Act (INA), there are often a variety of precedents from the Board of Immigration Appeals (BIA) and federal appellate courts on which conduct and convictions fall under the general crime in the INA. This is because the INA generally lists categories of offenses rather than what specifically constitutes an “aggravated felony.” The conviction does not always have to be a “felony” conviction in order for it to fall under the INA's definition of “aggravated felony.”

Furthermore, courts have found that a state law that covers an offense listed as an aggravated felony in immigration law may be “divisable,” meaning that part of the state statute may cover an aggravated felony in immigration law and part of the statute may not. In this scenario, it is possible that the conviction may be found to be for the part of the statute that is not an aggravated felony in the INA.

For these reasons, determining whether a specific criminal offense is an aggravated felony in immigration law is often a complicated process that requires a fact-specific inquiry of the offense in addition to a careful analysis of federal statutes and case history.

Aggravated Felonies in Depth

A — Murder, Rape, or Sexual Abuse of a Minor

The Board of Immigration Appeals (BIA) has held that a second-degree murder conviction that does not involve either felony murder or the intent to kill is an aggravated felony under the INA.¹

The Fifth Circuit Court of Appeals has held that “rape” in the INA does not categorically include sexual intercourse without consent.² First Circuit has held that statutory rape is an aggravated felony.³

The BIA has relied upon [PDF version] section 3509(a)(8) of title 18 of the U.S. Code (U.S.C.) to assess whether crimes fall under “sexual abuse of a minor.”⁴ The statute defines such as “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.” Notably, this definition includes crimes that do not involve violence or contact.⁵ The conviction need not be a “felony” in order for it to be considered an “aggravated felony” as defined by the INA.⁶

B — Illicit Trafficking in Controlled Substance

This provision is for illegal trafficking of a controlled substance as described in section 102 of the controlled substances act, including a drug trafficking crime as defined in section 924(c) of tithe 18 of the U.S.C.

The BIA has held [PDF version] that trafficking occurs if the offense is a felony under the laws of where the conviction occurred (state or federal) and whether the offense contains a “trafficking element.”⁷ The BIA has held that the drug must be a controlled substance under federal law.⁸ The Supreme Court held [PDF version] that a state offense must be conduct that would be an offense under federal law as well.⁹ The Supreme Court also held [PDF version] in one case that a marijuana distribution offense that was not a felony under federal trafficking laws was not an aggravated felony.¹⁰

C — Illicit Trafficking in Firearms, Destructive Devices, or Explosive Materials

This provision includes illicit trafficking in firearms or destructive devices as defined in section 921 of title 18 of the U.S.C., or in explosive materials as defined in section 841(c) of the U.S.C.

D — Money Laundering Offenses

This provision is for an offense described in section 1956 of title 18 of the U.S.C. (relating to money laundering) or section 1957 (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds involved exceeded $10,000.

E — Explosive Materials and Firearms Offenses

This provision includes various offenses described in title 18 of the U.S.C.:

Explosive materials offenses [18 U.S.C. section 842(h)-(i), or 844(d)-(i)];
Firearms offenses [18 U.S.C. section 922(g)(1)-(5), (j), (n), (o), (p), or (r), or 924(b) or (h)];
Firearms offenses [section 5861 of the Internal Revenue Service (IRS) Code of 1986].

F — Crime of Violence

This provision is for crimes of violence as defined in section 16 of title 18 of the U.S.C. (excluding purely political offenses) for which the term of imprisonment is at least 1 year

Section 16 defines a crime of violence as a crime that has the element or use (including threatened use or attempted use) of physical force against another person or the property or another, and any offense that is a felony and by its nature includes a substantial risk of force.

The Supreme Court has held that a “crime of violence” requires “violent force” and that simple touching is not sufficient.¹¹

G — Theft, Burglary, or Receipt of Stolen Property

The offense must include an imposed term of imprisonment that is at least 1 year.

The Supreme Court held that burglary is defined as “unlawful or unprivileged entry, or remaining in, a building or structure, with intent to commit a crime.”¹² The Supreme Court defined “theft” as the taking or exercising control over property without consent and with the criminal intent of depriving the owner of rights and benefits.¹³

H - Ransom

This provision is for an offense described in section 875, 876, 877, or 1202 of title 18 of the U.S.C. relating to the demand for or receipt of ransom. These sections describe:

Using interstate communications to demand ransom or threaten kidnapping;
Using mail to make threatening communication;
Making threatening communication from foreign countries;
Receiving, possessing, or disposing of ransom money or property.

I — Child Pornography

This provision is for an offense described in section 2251, 2251A, or 2252 of title 18 of the U.S.C. Child pornography offenses include:

Employing or using minors to engage in pornography;
Coercing minors to engage in pornography;
Transferring custody of a child with knowledge that the child will be used for pornography;
Receiving or distributing child pornography.

J — Racketeer Influenced and Corrupt Organizations Act (RICO)

This provision is for an offense described in section 1962 of title 18 of the U.S.C. (relating to racketeer influenced corrupt organizations), an offense described in section 1084 (if the offense is a second or subsequent offense), or an offense described in section 1955 (relating to gambling offenses). The offense that may be imposed must be at least 1 year for the crime to be an aggravated felony.

Offenses described in section 1084 also qualify if it is the second or subsequent offense. Offenses described in section 1955 (related to gambling) qualify if a sentence of at least one year's imprisonment may be imposed for the offense.

Circuit Courts have split on the meaning of “described” with regard to racketeering offenses insofar as whether a crime committed in a state with no interstate element may qualify.¹⁴

K — Prostitution and Slavery Offenses

This provision is for an offense that is related to the owning, controlling, managing, or supervising a prostitution business.

It covers offenses that are described in section 2421, 2423 of title 18 of the U.S.C. relating to transportation for purpose of prostitution if committed for commercial advantage.

This section also includes crimes described in sections 1581, 1582, 1583, 1584, 1585, 1588, 1589, 1590, and 1591 of title 18 of the U.S. Code (relating to peonage, slavery, involuntary servitude, and trafficking in persons).

L — National Defense Secrets

This section is for an offense described in section 793 (relating to gathering or transmitting national defense information), section 798 (relating to the disclosure of classified information), section 2153 (relating to sabotage), or 2381-2382 (relating to treason) of title 18 of the U.S.C.

The section also includes offenses described in section 601 of the National Security Act of 1947 (protecting the identity of undercover intelligence agents and undercover agents).

M — Fraud and Deceit

This section covers offenses that involve fraud or deceit in which the victim of the fraud or deceit loses at least $10,000. It also includes an offense described in section 7201 of the IRS Code of 1986 (relating to tax evasion) in which the government loses at least $10,000 in revenue.

The Supreme Court held [PDF version] that a categorical analysis is required to determine whether a given crime is a “fraud or deceit” crime, and “circumstance-specific” analysis in order to determine whether the victim(s) incurred losses in excess of $10,000.¹⁵ Whether the loss was in excess of $10,000 is determined by assessing the actual amount that the defendant was convicted of rather than the amount of restitution or other losses.¹⁶ If the crime is an offense described in section 7201 of the IRS Code of 1986, and the government incurred a loss of at least $10,000 in revenue, it need not involve crime or deceit to be an aggravated felony.¹⁷

Third Circuit held that this section does not cover the attempt to commit fraud or tax evasion, but an attempt may be an aggravated felony if charged under section 101(a)(43)(U) rather than under this provision.¹⁸

N — Alien Smuggling

This section is for an offense described in paragraph 1(A) or (2) of section 274(a) of the INA. Paragraph 1(A) prohibits the hiring, recruiting, or referring for a fee for employment in the United States of an alien without employment authorization. Paragraph 2 refers to continuing employment of an alien who is not authorized for employment. Section 101(a)(43)(N) of the INA states explicitly that where an alien hires, recruits, refers for a fee, or employs an alien spouse, child, or parent, it will not be considered an “aggravated felony” provided that it is a first offense.

O — Illegal Reentry by a Removed Alien who was Convicted of an Aggravated Felony

This provision applies to aliens previously deported for an aggravated felony and then convicted of an offense described in section 275(a) or 276 of the INA. Section 275(a) refers to entry without inspection (EWI), and section 276 to reentry of previously removed aliens. The BIA has held that the previous deportation for an aggravated felony is required for an offense described in 275(a) to be an aggravated felony.¹⁹

P — Passport or Document Fraud

This provision includes an offense for falsely making, forging, counterfeiting, mutilating, or altering or passport or instrument in violation of section 1543 of title 18 of the U.S. Code, and an offense that is described in 1546(a) (relating to document fraud). The term of imprisonment must be at least 12 months for the crime to be considered an aggravated felony. There is a first-offense exception for when the alien may demonstrate that the offense was committed for purpose of assisting, abetting, or aiding an alien spouse, child, or parent.

Q — Failure to Appear at Sentencing

This provision is for an offense relating to failure to appear by a defending for service of a sentence if the underlying offense is punishable by a term of imprisonment of at least 5 years.

R — Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles

This provision is for an offense relating to commercial bribery, counterfeiting, forging, or trafficking in vehicles that have altered identification numbers for which the term of imprisonment is at least 1 year.

S — Obstruction of Justice, Perjury, or Bribery of a Witness

This provision is for an offense relating to obstruction of justice, perjury or subordination of perjury, or bribery of witness, for which the term of imprisonment is at least 1 year.

The BIA has held [PDF version] that “relating to a crime of obstruction” means “an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.”²⁰ Furthermore, the Board held that the existence of a judicial proceeding is not required to find obstruction.²¹

The BIA has held that a state perjury conviction may constitute an “aggravated felony” where the state statute is essentially the same as the federal perjury statute.²²

T — Failure to Appear to Court

This provision is for an offense relating to the failure to appear before a court for a court order to answer or to depose of a charge of a felony for which a sentence of 2 years' imprisonment may be imposed.

U — An Attempt or Conspiracy to Commit any of the Above Offenses

This provision covers the attempt or conspiracy to commit any of the aforementioned aggravated felonies. The BIA has held that a conspiracy does not need to be for a crime that requires an overt act, but the Ninth Circuit has disagreed.²³

Foreign Convictions

A conviction for any of these crimes committed abroad constitutes an aggravated felony if and only if the term of imprisonment was completed within the previous 15 years.²⁴ The 15-year imprisonment limitation only applies to convictions abroad, and does not apply to convictions in the United States for which there is no limitation.²⁵

Aggravated Felony Advice

Being convicted of an aggravated felony as defined in immigration law will have serious adverse consequences for an alien. Whether a remedy is available will always depend on both the nature and circumstances of the crime and conviction and the immigration situation that the alien is in. An experienced immigration attorney is an indispensable asset in assisting an alien in dealing with adverse immigration consequences stemming from an aggravated felony conviction. It is important to remember that even if an alien demonstrates that a conviction was not an “aggravated felony,” the conviction may still have negative discretionary consequences for the alien depending on the immigration benefit or relief that is being sought. To learn about the consequences of an aggravated felony conviction in a specific immigration context, please consult the links in the first section of this article.

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1. Matter of W-M-, 25 I&N Dec. 748 (BIA 2012); aff'd Wajda v. Holder, 727 F.3d 457, 462-65 (6th Cir. 2013)
2. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012); but see Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000) [conviction for “rape” that involved preventing person from resisting by using a substance constitutes “aggravated felony”]
3. Silva v. Gonzales, 455 F.3d 26 (1st Cir. 2006)
4. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999) [but note the decision did not adopt that statute as a definition, but rather as a guide to analyze specific crimes/convictions]
5. See e.g., Restrepo v. Att'y Gen. of U.S., 617 F.3d 787, 791-800 (3d Cir. 2010); but see Amos v. Lynch, 790 F.3d 512 (4d Cir. 2015) [holding that Maryland statute on sexual abuse of a minor was divisible, and that the failure to act to prevent sexual abuse is not necessarily an aggravated felony as defined in the INA].
6. Matter of Small, 23 I&N Dec. 448 (BIA 2002)
7. Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992)
8. Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010)
9. Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625 (2006); Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) [holding that second conviction for possession of marijuana was not an aggravated felony because it was not based upon an earlier conviction]
10. Moncrieffe v. Holder, 569 U.S. __, 133 S.Ct. 1678 (2013)
11. Johnson v. U.S. 133 (2010); U.S. v. Castleman, 572 U.S. __, 136 S.Ct. 1405 (2014) [violent force required in immigration context in domestic violence case]
12. Taylor v. U.S., 495 U.S. 575, 598-99 (1990)
13. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)
14. Spacek v. Holder, 688 F.3d 536, 538-39 (8th Cir. 2012) [holding that a state racketeering offense with no interstate element qualified]; but see Bautista v. Att'y Gen. of U.S., 744 F.3d 54 (3d Cir. 2014) [disagreeing with Spaeck on that point]
15. Nijhawan v. Holder, 558 U.S. 29, 38 (2009)
16. See e.g., Doe v. Att'y Gen. of the U.S., 659 F.3d 266, 274-77 (3d Cir. 2011); Munoz v. Holder, 755 F.3d 366, 371 (5th Cir. 2014)
17. Kawashima v. Holder, 565 U.S. __, 132 S.Ct 1166 (2012) [also holding that the government must prove that the loss was in excess of $10,000 by “clear and convincing evidence,” and that aiding and assisting in the preparation of a false tax return is an “aggravated felony” under this section]
18. Singh v. Att'y Gen. of the U.S., 677 F.3d 503, 518-19 (3d Cir. 2012)
19. Matter of Alvarado-Alvina, 22 I&N Dec. 718 (BIA 1999); Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. 1999)
20. Matter of Valenzuela-Gallardo, 25 I&N Dec. 838 (BIA 2012); expanded upon Matter of Espinoza-Gonzalez, 22 I&N Dec. 889, 893-94 (BIA 1999)
21. Matter of Valenzuela-Gallardo, 25 I&N Dec. 838 (BIA 2012)
22. Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001)
23. Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) [no overt act necessary]; U.S. v. Garcia-Santana 743 F.3d 666 (9th Cir. 2014)
24. INA § 101(a)(43)
25. Id., Canto v. Holder, 593 F.3d 638, 640-41 (7th Cir. 2010) [rejecting equal protection challenge against different treatment for foreign and domestic convictions]

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 219-254, Print. Treatises & Primers.