What is an aggravated felony?

“Aggravated Felony” for Immigration Purposes

“Aggravated felony” refers to a class of crimes, designated by federal law, as having serious immigration consequences for non-U.S. citizens. Federal law has characterized approximately 30 crimes as “aggravated felonies.” Many assume “aggravated felony” only includes violent offenses, however this is not the case. While most violent offenses are categorized as aggravated felonies for purposes of immigration, a crime does not need to be a felony to be considered an aggravated felony. An aggravated felony is whatever Congress says it is at any given time.

What does it matter?

Conviction of an aggravated felony under 8 USC §1101(a)(43) after the noncitizen is admitted to the United States is a basis for deportability (removal). Other penalties, whether it occurs before or after admission to the United States, include the following:

  • Ineligibility for political asylum
  • Ineligibility for cancellation of removal
  • Permanent ineligibility to establish good moral character, a requirement for cancellation of removal for certain nonpermanent residents, suspension of deportation, voluntary departure, and U.S. citizenship
  • Permanent ineligibility for immigration after deportation
  • Barring of permanent residents from applying for a waiver of inadmissibility for crimes involving moral turpitude and other offenses
  • Being subject to a speeded-up schedule for removal hearings and appeals

What is an aggravated felony under 8 USC §1101(a)(43)?

A complete list of aggravated felonies is listed under 8 USC §1101(a)(43). There are three categories: (1) crimes that are always aggravated felonies, (2) crimes that are aggravated felonies only when offender received a sentence of one year or more, and (3) aggravated felonies when the victim’s loss is greater than $10,000.

(1) Always an aggravated felony

The following crimes are always almost always aggravated felonies regardless of the loss to the victim or the sentence of the offender. They include, but are not limited to:

  • Rape,
  • Kidnaping,
  • Treason,
  • Child pornography,
  • Owning or running a house of prostitution,
  • Disclosure of classified government information,
  • Lewd acts with a minor,
  • Human trafficking, and
  • Drug trafficking.

(2) Aggravated felony only when sentence of one year or more

The following crimes are only “aggravated felonies” only when the wrongdoer received a prison sentence of at least one year: 

  • Burglary,
  • Theft,
  • Forgery,
  • Obstruction of justice,
  • Crimes of “violence” (as defined in 18 USC 16),
  • Bribery
  • Receipt of stolen property,
  • Counterfeiting,
  • Perjury, and
  • Racketeering.

(3) Aggravated felony when loss to victim is more than $10,000

The following crimes are only “aggravated felonies” for immigration purposes when the victim’s losses exceed $10,000:  

  • Tax evasion
  • Fraud, and
  • Money laundering.
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