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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 have noted, numerous “non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws.”
As 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 of “aggravated felony” on numerous occasions, 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.
No. An “aggravated felony” is one—but not the only—basis to deport immigrants convicted of a criminal offense. Removal proceedings may also be initiated against immigrants convicted of one or more “crimes involving moral turpitude,” a broad category of offenses that includes, but is not limited to, most crimes that qualify as an “aggravated felony.” Noncitizens convicted of crimes involving moral turpitude may be subject to deportation, but do not face the additional consequences associated with a conviction for an “aggravated felony.” The immigration laws also permit deportation for convictions of various standalone offenses.
Thus, whether a noncitizen is subject to deportation for a crime is not determined by whether the crime is labeled an “aggravated felony.” Instead, the primary impact of the “aggravated felony” classification relates to the increased immigration penalties attached to the label, including the inability to apply for most forms of relief from removal.
Certain noncitizens convicted of an “aggravated felony” are provided fewer legal protections than other immigrants. For example, any immigrant convicted of an “aggravated felony” who is not a lawful permanent resident (LPR) may be administratively deported from the United States without a formal hearing before an Immigration Judge. Immigrants placed in such proceedings are not eligible for asylum or any other form of discretionary relief. Immigrants found deportable in this manner may not appeal to the Board of Immigration Appeals (BIA) and can be physically removed two weeks after entry of the order.
Federal immigration authorities are required to detain any immigrant convicted of an “aggravated felony” upon his or her release from criminal custody. To obtain bond from an immigration judge, LPRs who are detained following a conviction of a potential “aggravated felony” must demonstrate with substantial likelihood that the crime in question does not qualify as an “aggravated felony.”
Any immigrant convicted of an “aggravated felony” is ineligible for asylum. Asylum is a form of immigration relief available to immigrants who suffered or have a well-founded fear of persecution in their country of nationality or last habitual residence. Immigrants convicted of an “aggravated felony” may also be ineligible for “withholding of removal,” a similar form of relief for noncitizens whose life or freedom would be threatened in the country of deportation.
Any immigrant convicted of an “aggravated felony” is ineligible for cancellation of removal (“cancellation”). Cancellation is a form of relief allowing immigration judges to permit otherwise deportable immigrants to remain in the United States. The bar to cancellation for immigrants convicted of an “aggravated felony” applies regardless of whether their removal would cause “exceptional and extremely unusual hardship” to an immediate family member who is a U.S. citizen or LPR.