Aggravated felony

In United States immigration law, the term aggravated felony ("violent felony" or a "federal felony"), refers to a broad category of crimes that carry certain severe consequences for aliens seeking asylum, legal permanent resident status, citizenship, or avoidance of deportation proceedings. When the category of "aggravated felonies" was added to the Immigration and Nationality Act in 1988, as a response to a heightened concerns about drug abuse, it encompassed only murder and trafficking in drugs or firearms. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) both tremendously expanded the category. AEDPA added crimes related to gambling and passport fraud; IIRIRA added a great many more crimes, including certain crimes of a sentence of at least a year regardless of whether the sentence had been suspended. Under present law, 8 U.S.C. § 1101(a)(43), an aggravated felony includes any crime described on the following list:

1. murder, rape, or sexual abuse of a minor
2. illicit trafficking in a controlled substance, including a drug trafficking crime
3. illicit trafficking in firearms, destructive devices, or explosive materials
4. money laundering (see 18 U.S.C. § 1956)
5. certain explosives and firearms crimes (see 18 U.S.C. § 842, 18 U.S.C. § 924, and 26 U.S.C. § 5861)
6. "crimes of violence," as defined in 18 U.S.C. § 16, for which the sentence imposed was one year or greater
7. theft or burglary offenses, for which the sentence imposed was one year or greater
8. making ransom demands (see 18 U.S.C. § 875 et seq.)
9. certain child pornography crimes (see 18 U.S.C. § 2251)
10. racketeering crimes, for which a sentence of one year imprisonment or more may be imposed
11. prostitution crimes, supervising prostitutes, or transporting persons across state lines for purposes of forcing them into prostitution
12. disclosing national security information
13. fraud on another person or against the government, where the amount of loss exceeds $10,000
14. alien smuggling
15. illegally entering or reentering the United States
16. passport fraud, for which the sentence imposed was one year or greater
17. failing to report to serve a prison sentence where the underlying offense is punishable by imprisonment for a term of 5 years or more
18. bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers
19. perjury, tampering with witnesses, or obstruction of justice, for which the sentence imposed was one year or greater
20. failing to appear in court in relation to a criminal prosecution where the potential sentence is two years or more
21. any attempt or conspiracy to commit any of these offenses

In Lopez v. Gonzales, the Supreme Court ruled that because immigration law is under the control of the federal government, the definitions of any terms on this list comes from federal law, not state law. For example, in Leocal v. Ashcroft, 543 U.S. 1 (2004), the Court ruled that DUI is not an aggravated felony if the DUI statute that defines the offense does not contain a mens rea element or otherwise allows a conviction for merely negligent conduct.

An alien convicted of an aggravated felony may not:

• receive asylum in the United States
• become a citizen
• subsequently enter the United States
• have removal orders cancelled without specific authorization of the Attorney General

At the same time, aliens convicted of aggravated felonies are automatically deported through expedited procedures intended to ensure that the deportation occurs as soon as the alien is released from prison after serving the sentence imposed for the underlying crime. These deportation orders are not subject to review by the federal courts, although federal courts have ruled that they may determine which crimes constitute aggravated felonies.

IIRIRA required that aliens convicted of aggravated felonies must be detained while awaiting removal, resulting in the detention of far more aliens than before the Act took effect. In Demore v. Kim, 538 U.S. 510 (2003), the Court ruled that the mandatory detention provision of IIRIRA was constitutional.

The definition of aggravated felony has significantly expanded since its inception in 1988. A series of amendments have expanded its reach to the point that an aggravated felony need not aggravated, nor a felony, to trigger the consequences of such a conviction.

A related use of the term "aggravated felony" comes in the context of the definition of the crime of illegal reentry into the United States following deportation, 8 U.S.C. § 1326, and the corresponding sentencing enhancement provided by the Federal Sentencing Guidelines. It is a crime for an alien to enter or be found in the United States after that alien has been deported. The maximum sentence for this crime is 2 years; however, if that deportation follows a conviction for an aggravated felony, the maximum sentence increases to 20 years.

Furthermore, the guideline that corresponds to this crime typically doubles or triples the sentence the alien would otherwise have received if the deportation follows conviction for an aggravated felony. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court held that this increased maximum sentence did not violate the Sixth Amendment.

Comparison to crimes involving moral turpitude (CIMT)

The consequences of making a crime an aggravated felony are far reaching. One major consequence is that, unlike the deportability ground for a crime involving moral turpitude (CIMT), aggravated felonies do not have to be committed within five years after admission into the U.S. to give rise to deportability. (E.g. a Lawful Permanent Resident who was admitted into the U.S. as a small child and who commits an aggravated felony at age 60 becomes deportable).

Also, unlike the moral turpitude provision of the Immigration and Nationality Act, an aggravated felony makes a person deportable without regard to the actual or potential sentence attached to the conviction.

Sources

• Immigration Law and Procedure, 5th ed., by David Weissbrodt and Laura Danielson