Aggravated Felony Immigration
These crimes pertain to convictions under federal and state law that lead to severe consequences to any immigrant. The definition of aggravated felonies is found in INA §101(a)(43). The following crimes are included in the definition:
Aggravated Felonies of Murder, Rape, or sexual abuse of a minor under INA §101(a)(43)(A)
The Board of immigration appeals has defined this crime broadly. It includes the employment, use, persuasion, inducement, incitement, or coercion of a child to engage in sexual acts. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999). The Supreme Court in 2017 in Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017) ruled that to be classified as a minor, the child should be under 16.
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Aggravated Felonies of Illicit Trafficking in controlled substances under INA §101(a)(43)(B)
This statute has two crimes. First, illicit trafficking which is not defined. Second, drug trafficking, which is a felony crime under federal law and requires renumeration for some sort of commercial dealing. The substance must be a controlled substance under federal law. A state’s controlled substance schedule must also not list controlled substances not regulated federally. In drug trafficking cases, the statute must also require renumeration for it to be an aggravated felony.
Aggravated Felonies of Illicit Trafficking in Any Firearms or Destructive Devices under INA §101(a)(43)(C)
These are crimes as define in 18 USC §921 or 18 USC §841(c)
Aggravated Felonies of Any offense related to laundering of monetary instruments under INA §101(a)(43)(D)
These are offenses under 18 USC 1956 and 1957 relating to laundering monies from illegal activities. The amount of loss muse exceed $10,000
Aggravated Felonies of Explosives Firearms Arson under INA §101(a)(43)(E)
This ground of deportability includes several crimes:
- Offenses described in 18 USC §842(h) relating to the transportation or receipt of stolen explosives and 18 USC §842(i) barring certain persons like drug abusers from transporting or receiving explosives
- Offenses described in §844(d)-(i)
- Offenses described in 18 USC §§922(g)(1)-(5) barring certain persons unlawfully in the US from possessing firearms or ammunition
- Offenses under 18 USC §§924 (b) and (h)
- Offenses under 26 USC §5861
Aggravated Felonies of Crimes of violence under INA §101(a)(43)(F)
Crimes of violence as defined by 18 USC §16 (not purely political) are deportable offenses because they are aggravated felonies if the term of imprisonment is at least one year. Crimes under 16(a) require the use of force. Section 16(b) require the substantial use of force or its likelihood. The Supreme Court in Sessions v. Dimaya, 138 S,Ct. 1204 (2018) ruled that §16(b) is unconstitutional for vagueness. Convictions under §16(a) require a mens rea and could not be a negligence crime. Moreover, the use of force must be an element of the crime.
Aggravated Felonies of Theft, Burglary, or Receipt of Stolen Property under INA §101(a)(43)(G)
These crimes include theft, including the receipt of stolen property, or burglary in which the sentence imposed was one year or more. Burglary is the breaking and entering into a dwelling with the intent to commit a crime within. Taylor v. U.S., 495 U.S. 575, 598-99 (1990). Theft offenses include any offenses that include a taking with the intent of depriving the owner of ownership. Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2017).
Aggravated Felonies of Fraud/Deceit; Tax Evasion under INA §101(a)(43)(M)(i) and INA §101(a)(43)(M)(ii)
Offenses under INA 101(a)(43)(M)(i) include offenses against private parties where the loss was more than $10,000. INA 101(a)(43)(M)(ii) offenses include offenses where the loss to the government was over $10,000. The government must show the amount of loss by clear and convincing evidence and is not limited to the categorical and non-categorical approaches.
Aggravated Felonies of Alien Smuggling under INA §101(a)(43)(N)
These are offenses included in INA 274(a)(1)(A) or (a)(2). There is an exception for smuggling someone’s own parent, spouse, or child.
An offense described under INA §§285(a) or 276 under INA 101(a)(43)(O)
These crimes relate to offenses committed by a person previously deported for an aggravated felony.
Falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument under INA §101(a)(43)(P)
These are offenses described in 18 USC §1543 or 18 USC §1546(a) and a term of imprisonment of 12 months was imposed. There is an exception for a person helping a spouse, a child or a parent.
Offenses relating to a failure to appear by a defendant for service of a sentence under INA §101(a)(43)(Q)
These include offenses where the possible sentence is 5 years or more.
An offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicle with altered ID number under INA §101(a)(43)(R)
The term of imprisonment must be more than one year. It includes the following crimes:
- Forgery: the definition includes a) false or making material alterations ; b) with intent to defraud, and c) of a writing, if genuine, might be of legal efficacy or the foundation of legal liability. Alvarez v. Lynch, 828 F.3d 288 (4th Cir. 2016).
- Commercial Bribery
An offense relating to obstruction of justice, perjury, or subornation of perjury or bribery under INA §101(a)(43)(S)
The Board of Immigration Appeals has determined that perjury requires a false written or oral statement knowingly and willfully under oath. Matter of Alverado, 26 I&N Dec. 895, 901-902 (BIA 2016). Moreover, the term of imprisonment must be at least one year. Obstruction, according to the Board of Immigration Appeals relates to affirmative and intentional attempt, with specific intent, to interfere with judicial proceedings. Matter of Velenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012).
An Offense Relating to a failure to appear before a court pursuant to a court order under INA §101(a)(43)(T)
The offense relates to the failure to appear for a violation for which a sentence of two years could be imposed. According to the Board of Immigration Appeals, the categorical approach applies to determine whether the offense related to failure to appear. Matter of Garza Oliveras, 26 I&N Dec. 736 (BIA 2016). According to the same decision, the circumstance specific inquiry applies in determining whether the failure was 1) pursuant to a court order 2) to answer for a charge and 3) if the term of imprisonment was for 2 years. Id.
An attempt or conspiracy to commit any of the crimes above under INA §101(a)(43)(U)
For a person to be deportable under the attempt provision, the immigrant must be charged under that provision. Matter of Onyido, 22 I&N Dec. 552 (BIA 1999). For conspiracy grounds, the underlying offense must be an aggravated felony. Villavicencio v. Sessions, 879 F.3d 941, 946 (9th Cir. 2018).
A conviction for one of the abovementioned crimes will have serious consequences on an immigrant’s immigration status. Our office has helped numerous clients before and after their criminal pleas to avoid these consequences. Call us today.