What is an Aggravated Felony for Immigration Issues?

There are several ways that one may become deportable. One way is to be convicted of an “aggravated felony.” What is this?

Under immigration law, some convictions are classified as “aggravated felonies.” A person “who is convicted of an aggravated felony any time after admission [to the U.S.] is deportable.” 8 U.S.C. § 1227(a)(2)(iii). A person who is trying to determine whether a conviction is an aggravated felony should be aware that the courts and the Board of Immigration Appeals (BIA) distinguishes the meaning of “aggravated felony” depending on the context of the case. One line of cases deals with whether the person has been convicted of an aggravated felony for purposes of determining removability or eligibility for discretionary relief from removal, as discussed in this section. Another line of cases addresses whether a person has been convicted of an aggravated felony for purposes of enhanced penalties for the federal crime of illegal reentry. The illegal reentry cases do not control the definitions of aggravated felonies for removal cases.

A person who is convicted of an aggravated felony will have few possibilities for avoiding deportation, even if the person has a green card, lived in the U.S. a long time, or has close family members who are citizens.

Federal immigration law has a long list of crimes that are aggravated felonies. Many of these are identified by generic names, without defining the elements required for a state conviction to qualify as an aggravated felony. The generic aggravated felonies include murder, rape, sexual abuse of a minor, theft, receipt of stolen property, burglary, ransom, child pornography, gambling and racketeering, prostitution, fraud, deceit, failure to appear, commercial bribery and forgery, perjury, obstruction of justice, and bribery of a witness.

Some types of offenses are aggravated felonies only if the court actually sentences the person to a term in custody of at least one year: “crimes of violence,” theft and burglary, including receipt of stolen property, commercial bribery, counterfeiting, and forgery, obstruction of justice, perjury, subornation of perjury, or bribing a witness. See, e.g., 8 U.S.C. § 1101(a)(43).

The portion of a sentence received for a recidivist enhancement counts toward the sentence length. United States v. Rodriquez (2008) 553 U.S. 377, 128 S. Ct. 1783, 170 L. Ed. 2d 719; United States v. Rivera (9th Cir. 2011) 658 F. 3d 1073, 1076. Also, a prison or jail term imposed after a probation violation is included in the sentence. See, e.g., United States v. Jimenez (9th Cir. 2001) 258 F. 3d 1120.

However, a conviction will no longer be an aggravated felony if the court initially imposed a term of a year or more but later reduces the sentence to under one year. Matter of Song (BIA 2001) 23 I. & N. Dec. 173. One should note that California law sets the maximum sentence for all misdemeanors at less than a year (364 days); this law applies retroactively to convictions dating from prior to January 1, 2015 (when misdemeanors could be punished by up to a one year (365-day) jail term. Penal Code § 18.5.

People with California convictions should be aware that their convictions may not necessarily qualify as aggravated felonies due to differences between the federal and state definitions of various offense. Also, the list of aggravated felonies includes “crimes of violence” (any offense “that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”), but the United States Supreme Court recently found that this provision is invalid because it is unconstitutionally vague. Sessions v. Dimaya (2018) 584 U.S. __, 138 S. Ct. 1204, 200 L. Ed. 2d 549; 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16.

For example, a California crime of burglary under Penal Code § 459 used to be considered an aggravated felony in many cases, but under recent law it is not an aggravated felony because it (a) does not categorically include all the elements of the federal crime of burglary (Descamps v. United States (2013) 570 U.S. 254, 133 S. Ct. 2276; 186 L. Ed. 2d 438), (b) is not divisible so that a court cannot use the modified categorical approach to consider whether the offense contains all the elements of the federal crime of attempted theft (Rendon v. Holder (9th Cir. 2014) 764 F. 3d.1077), and (c) cannot lawfully be deemed a crime of violence (Dimaya, supra).

We wish to thank the Prison Law Office in Folsom, California, for their excellent treatise, The California Prison and Parole Law Handbook, which this article draws a significant amount of information. Thank you, Prison Law Office.