Aggravated Felony
General
The immigration consequences for a non-citizen convicted of an aggravated felony, and who has already entered the United States, is deportation.
A non-citizen who tries to enter the country with an aggravated felony conviction is deemed inadmissible. The term inadmissible means that the aggravated felony can be a basis for keeping someone from immigrating to the United States or for denying that person a green card. See INA § 237(a)(2)(A)(iii). A person who is deported for an aggravated felony is permanently barred from re-entering the United States. INA § 212(a)(9)(A)(i).
What is an Aggravated Felony?
Aggravated felonies are enumerated by statute at INA § 101(a)(43). In the immigration context, the term “aggravated felony†is not analogous to the use of that same term under federal criminal law. In fact, a federal or state crime that is classified as a misdemeanor can be an “aggravated felony†for immigration purposes if it meets the immigration definition of “aggravated felony.†The BIA held in Matter of Crammond, 23 I&N 9 (BIA en banc 2001) that if a person is convicted of an offense that has a potential sentence of less then one year, then the offense is not an aggravated felony. However, there are two exceptions to this rule. First, the ruling does not necessarily apply to drug offenses. Second, some federal courts have held that some misdemeanors can be aggravated felonies.
Crimes that are considered aggravated felonies can be found at:
www.ins.gov/lpBin/lpext.dll/inserts...?f=templates&fn=document-frame.htm#slb-act101. Note that any drug offense other than the first conviction for simple possession is likely to be an aggravated felony. Any theft crime—including a large number of relatively minor offenses—for which the sentence is one year or more, is also an aggravated felony.
What Constitutes a Conviction for Immigration Purposes?
A person must be “convicted†of a crime which constitutes an aggravated felony. A “conviction†under the INA requires that: 1) a judge or jury finds the person guilty or the person admits guilt, pleads no contest, or admits sufficient facts to support a finding of guilt; and 2) the judge orders some form of punishment, penalty, or restraint. This includes cases that have been sealed or expunged. Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). Note that the 9th Circuit reversed the BIA’s decision in Roldan, holding that expungement, deferred adjudication, or other “rehabilitative relief†will eliminate the immigration effect of a first offense, simple possession conviction. Lujan-Armendariz v. INS (with Roldan v. INS joined), 222 F.3d 728 (9th Cir. 2000). Lujan-Armendariz only applies to immigration cases in the 9th Circuit.
Vacation of judgment and other post-conviction relief (including executive pardon) should remove aggravated felon status (with the exception of drug crimes—See Drug Convictions and Abuse for more information). The immigration definition of “conviction†does not include juvenile offenses, cases on direct appeal, and cases that have been referred to a state diversion program (unless a person is required to admit guilt, plead no contest, or admit sufficient facts to support a finding of guilt as a condition of referral to the program).
Inadmissible
Non-LPRs (Non-Legal Permanent Residents) convicted of an aggravated felony may apply for a waiver of inadmissibility under INA § 212(h) if: 1) he/she is the spouse, parent, or child (of any age) of a US citizen or LPR, and can prove that his/her removal from the United States would result in extreme hardship to the U.S. citizen or LPR relative; or 2) the crime occurred more than 15 years ago, his/her admission would not hurt national welfare or society, and he/she is rehabilitated. Individuals convicted of an aggravated felony who have ever had LPR status cannot apply for a waiver under INA § 212(h).
Cancellation of Removal
A non-citizen convicted of an aggravated felony is ineligible for release on bond from immigration custody, and is ineligible for asylum, cancellation of removal, or waiver of removal (if the person was a legal permanent resident at the time of his/her conviction). If a person who is deported for an aggravated felony attempts to re-enter the United States without permission, he/she is subject to a 20 year prison sentence under 8 U.S.C. § 1326(b)(2).
There is no remedy, waiver, or relief available to an LPR who has been convicted of an aggravated felony. However, an LPR who is convicted of an aggravated felony prior to September 30, 1996 (the date of enactment of the Illegal Immigration and Immigrant Responsibility Act of 1996) may be eligible for relief from deportation under the pre-1996 rules (which allowed aggravated felons to apply for cancellation of removal if they were legally present in the U.S. for seven years, including five as an LPR, and did not serve more than five years incarceration for the offense). INS v. St. Cyr, 121 S. Ct. 2271 (June 25, 2001).
Crimes Involving Moral Turpitude
General
Under INA § 237(a)(2)(A)(i)(ii), the immigration consequence for a non-citizen convicted of a crime involving moral turpitude (CIMT), and who has already entered the United States, is deportation. Under INA § 212(a)(2)(A)(i)(I), a person who tries to enter the country with a CIMT conviction is deemed inadmissible. The term inadmissible means that the CIMT can be a basis for keeping someone from immigrating to the United States or for denying that person a green card. Note that a person with a temporary legal status in the United States—or a permanent status that is subject to revocation—may not be able to immigrate through a relative later if he or she has ever committed a CIMT.
Deportation
The rules for deportability are less harsh than the rules for inadmissibility. A non-citizen is deportable for conviction of a CIMT (there must be a conviction) if, within five years of admission, he or she is convicted of a CIMT for which a sentence of one year or longer may be imposed. Conviction of any two CIMTs at any time after admission (not arising out of a single scheme of criminal misconduct), regardless of the potential sentence, also renders a non-citizen deportable.
What Constitutes a Conviction for Immigration Purposes?
A “conviction†under the INA requires 1) a judge or jury finds the person guilty or the person admits guilt, pleads no contest, or admits sufficient facts to support a finding of guilt; and 2) the judge orders some form of punishment, penalty, or restraint. This includes cases that have been sealed or expunged. Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). Note that the 9th Circuit reversed the BIA’s decision in Roldan, holding that expungement, deferred adjudication, or other “rehabilitative relief†will eliminate the immigration effect of a first offense, simple possession conviction. Lujan-Armendariz v. INS (with Roldan v. INS joined), 222 F.3d 728 (9th Cir. 2000). Lujan-Armendariz only applies to immigration cases in the 9th Circuit.
The definition of “conviction†does not include juvenile offenses, cases on direct appeal, and cases that have been referred to a state diversion program (unless a person is required to admit guilt, plead no contest, or admit sufficient facts to support a finding of guilt as a condition of referral to the program).
Inadmissible
A person is inadmissible (but not deportable) for a CIMT even if he or she has never been convicted. If a non-citizen admits to an officer that he or she committed a CIMT, that person is inadmissible. Attempts and conspiracy to commit a CIMT are also grounds of inadmissibility.
Generally, it takes only one commission of a CIMT to make a non-citizen inadmissible (but not deportable) to the United States. See INA § 212(a)(2)(A)(i)(I). However, there are two exceptions for people who have committed only one CIMT: 1) if the person commits the crime when he or she is under the age of 18 and the crime is committed (and the person was released from prison or jail) more than five years before the date of application for the visa (the “juvenile offender exceptionâ€); or 2) the maximum penalty for the crime is one year or less and the sentenced imposed for the crime is six months or less (the “petty offense exceptionâ€). Under the INA, a “sentence†includes a suspended sentence—even if the person never spends a day in jail. If a judge “suspends imposition of a sentence†or “suspends execution†of a sentence, it has the same immigration consequences as a sentence of incarceration. When the non-citizen falls under either one of the two above-referenced categories, the person is not considered inadmissible by the INS, and will not suffer the immigration consequences of inadmissibility discussed above.
What is a CIMT?
Unfortunately, there is no statutory definition of a “crime involving moral turpitude.†CIMT is defined only by case law. Courts have generally described it as a crime that is “inherently base, vile or depraved and contrary to the accepted rules of morality and the duties owed between persons or to society in general…and as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.†Matter of Franklin, 20 I&N Dec. 867 (BIA 1994). The immigration judge will examine the elements of the offense to determine if it is a CIMT. The actual facts of a case may not be as important as the elements of the offense. For example, a crime that involves intent to commit fraud or theft, intent to do great bodily harm, lewd intent in some sex offenses, or in some cases recklessness or malice, is considered a CIMT. Immigrant Legal Resource Center, A Guide for Immigration Advocates, 2001 edition (
www.ilrc.org). A list of crimes which have been designated as CIMTs can be found at
http://www.criminalandimmigrationlaw.com/cmt/cmt.html.
