Immigration law defines an aggravated felony, not by describing its common elements but by enumerating the specific offenses that fall under this category. Originally, the Anti-Drug Abuse Act of 1988 (ADAA) defined an aggravated felony to include murder, drug trafficking, and illicit trafficking of firearms. This definition has expanded over the years to include about 50 crimes. Currently, INA 101(a)(43) defines an aggravated felony to include murder, rape, sexual abuse of a minor, illicit trafficking of drugs, illicit trafficking of firearms, alien smuggling, and child pornography offenses, among others. Theft, burglary, crimes of violence, perjury and commercial bribery are also aggravated felonies but only if the term of imprisonment is at least 1 year. Crimes involving fraud or deceit, tax evasion, and money laundering are aggravated felonies if the loss or amount involved exceeds $10,000.
It is important to understand aggravated felonies because these offenses disqualify an alien from most immigration benefits or relief. Before we discuss these consequences, let’s see some problems involving aggravated felonies.
For example, in the case of Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011), a lawful permanent resident (LPR) alien was convicted of alien smuggling in 1984. In 2007, he was convicted of simple possession of a controlled substance. In 2008, he was placed in removal proceedings and charged as an aggravated felon and a controlled substance offender. The Ninth Circuit Court of Appeals held that his 1984 alien smuggling conviction was not a removable aggravated felony.
The problem in Reyes-Torres v. Holder could be traced to the last expansion of the definition of aggravated felony under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA made the amended definition of aggravated felony applicable to all aliens regardless of the date of conviction. Thus, an alien convicted prior to the enactment of IIRIRA on September 30, 1996 could be removed as an aggravated felon. It doesn’t matter that the crime was not yet classified as an aggravated felony when the alien was convicted. The law wanted this removal ground to be retroactive.
But what if the alien was convicted prior to the enactment of the ADAA, the law that created the aggravated felony ground for removal? The Ninth Circuit held that an alien is removable if he was convicted of an aggravated felony on or after the enactment of the ADAA on November 18, 1988 because the ADAA specifically imposed this limitation. The provision in IIRIRA which makes the expanded definition of aggravated felony applicable to convictions prior to September 30, 1996 does not override the limitation imposed by the ADAA.
For example, an alien was convicted of sexual abuse of a minor in 1990. Under the ADAA, sexual abuse of a minor was not an aggravated felony. It became an aggravated felony under IIRIRA. If this alien is placed in removal proceedings in 2013, he would be removable for an aggravated felony because even though his crime was not an aggravated felony in 1990, it became one in 1996 and the designation of the offense as an aggravated felony was retroactive to 1990 but it cannot retroact prior to November 18, 1988.
An aggravated felony has the following consequences. If an aggravated felon is in removal proceedings, he cannot generally apply for voluntary departure. He also cannot apply for asylum, whether or not he is in proceedings. He cannot apply for cancellation of removal, whether or not he is an LPR. If an aggravated felon is an LPR in removal proceedings and is applying for adjustment of status, he cannot apply for an INA 212(h) waiver to eliminate the effects of his conviction.
If an aggravated felon is not an LPR and is applying for adjustment, he is not necessarily inadmissible because an aggravated felony is not a ground for inadmissibility that would disqualify him from adjustment. However, a crime classified as an aggravated felony may also be classified under other grounds for inadmissibility such as a crime involving moral turpitude (CIMT) or a controlled substance offense. If this is the case, an aggravated felon applying for adjustment may be inadmissible due to a CIMT or a controlled substance conviction but not for an aggravated felony. If an adjustment applicant’s aggravated felony does not fall under other grounds for inadmissibility, his adjustment application could still be denied based on discretion.
If an aggravated felon was removed from the U.S., he is forever barred from returning unless he obtains consent to reapply for admission. Finally, an applicant for naturalization does not have good moral character if he has been convicted of an aggravated felony on or after November 29, 1990. Lack of good moral character is a ground for denial of naturalization.
Perhaps no one needs to be warned that a conviction for murder, drug trafficking or other familiar types of aggravated felonies could lead to removal. But some aliens are placed in proceedings on aggravated felony charges when long forgotten convictions for some obscure offenses come to the attention of immigration authorities after recent arrests for minor offenses. Thus, anyone who is considering a plea bargain must weigh the offer properly to avoid a charge of aggravated felony in the future.
