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Criminal Defense Attorneys

Immigration: Aggravated Felonies Under Federal Law?

If you are not a U.S. citizen and you face a criminal case, it is wise to know if the charges you face are considered aggravated felonies, a crime of moral turpitude (CIMT), a controlled substance offense, firearm offenses or a domestic violence offense.  A conviction for any one of these crimes could have adverse immigration consequences.

Even a DUI with injuries to others or a “wet reckless” can have adverse immigration consequences if one is not a U.S. citizen, so it is wise to speak with an experienced criminal defense attorney before agreeing to a wet reckless because one believes it is superior to a conviction for DUI.  It may not be for so for a non-citizen. 

Likewise, convictions for stalking, domestic violence, child abuse, sales of a controlled substance and transportation of a controlled substance must be handled with care and alternative resolution strategies, i.e. pleading to other offenses that avoid such immigration consequences must be considered, even if the terms of the plea bargain are more difficult.

By entering a plea, as part of a plea bargain, you will be asked by the judge if you have had an adequate opportunity to discuss the plea and its immigration consequences for you specifically (not just generally for someone).  If you state that you have had such an opportunity and wish to proceed, the judge will agree to accept your plea and find that it was entered knowingly, voluntarily and intelligently.  

Any conviction of a non-citizen to an “aggravated felony” will result in removal/deportation, exclusion, and / or denial of naturalization (see 8 U.S.C. § 1227(a)(2)(A)(iii); Esquivel-Quintana v. Sessions (2017) 137 S. Ct. 1562, 198 L. Ed. 2d 22). 

It is good to know that certain offenses defined as misdemeanors under California law may be considered “aggravated felonies” under federal law.

Aggravated felonies include, but are not limited to:
  1. Murder, rape, or sexual abuse of a minor;
  2. A crime of violence, as defined in 18 U.S.C. § 16, but not including a purely political offense if the term of imprisonment is at least one year;
  3. Trafficking of a controlled substance, firearms, destructive devices or explosive materials;
  4. Money laundering if the amount exceeds $10,000;
  5. An explosive materials offense;
  6. A firearms offense;
  7. A theft offense, including receipt of stolen property, or burglary offense if the term of imprisonment is at least one year;
  8. A child pornography offense;
  9. Pimping, pandering or operating a prostitution business;
  10. Human trafficking;
  11. Fraud or deceit in which the loss to the victim or victims exceeds $10,000;
  12. Failure to appear by a defendant for service of a sentence if the underlying offense is punishable by imprisonment for a term of five years or longer, or failure to appear to answer or resolve a felony by which a sentence of two years or more imprisonment may be imposed;
  13. Commercial bribery, counterfeiting, forgery, or trafficking in vehicles, the identification numbers of which have been altered if the term of imprisonment is at least one year;
  14. Obstruction of justice, perjury or subornation of perjury or bribery of a witness if the term of imprisonment is at least one year; or
  15. An attempt or conspiracy to commit any of the above offenses.
Other crimes, as defined by federal law, that may result in removal / deportation, exclusion, and /or denial of naturalization of other severe immigration consequences include, but are not limited to:
  1. A crime of moral turpitude (see 8 U.S.C. §§ 1182(a)(2)(A)(i), 1227(a)(2)(A)(i));
  2. A controlled substance offense (see 8 U.S.C. §§ 1182(a)(2)(A)(i), 1182(a)(2)(C), 1227(a)(2)(B));
  3. A firearm or destructive devise offense (see 8 U.S.C. § 1227(a)(2)(C));
  4. A domestic violence, stalking, or child abuse offense (see 8 U.S.C. § 1227(a)(2)(E)(i));
  5. Violation of a protective order (see 8 U.S.C. § 1227(a)(2)(E)(ii));
  6. A human trafficking offense (see 8 U.S.C. §§ 1182(a)(2)(H), 1227(a)(2)(F));
  7. Multiple criminal convictions with an aggregate sentence of five years or more (see 8 U.S.C. § 1182(a)(2)(B));
  8. A prostitution offense (see 8 U.S.C. § 1182(a)(2)(D));
  9. A “serious criminal offense,” which includes any felony, a crime of violence, and reckless driving or DUI with injury (see 8 U.S.C. § 1182(a)(2)(E)).
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