What Forms of Relief Do Aggravated Felonies Bar?

Aliens including permanent residents who are convicted of an aggravated felony are ineligible for many types of benefits and defenses to deportation (removal).  An alien who is removed (deported) because of an aggravated felony may not return to the United States for the rest of his life.  An alien found in the United States after deportation for an aggravated felony has committed a felony subject to a maximum term of imprisonment of 20 years.  18 USC 1326(a).

An alien convicted of an aggravated felony is generally ineligible for the following forms of relief:

• Asylum
• Withholding of removal (upon judge's determination
  of "particularly serious crime")
• Cancellation of removal for permanent residents
• Cancellation of removal for non-permanent residents
• Naturalization
• Nonimmigrant visas

An aggravated felony conviction does not bar relief under the Convention Against Torture.  To prevail in a CAT claim, the alien must prove that it is more likely than not that he will suffer torture if removed to the country the court designated.  For more information on Convention Against Torture relief, please visit our Convention Against Torture page.

What Is a Conviction for Immigration Purposes?

Unfortunately, "convcition" under IIRIRA does not mean the same thing as the word "conviction" under many state laws.  Under IIRIRA, the term “conviction” means a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.  INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

Some courts have held that the mere imposition of court costs constitutes a penalty for the purpose of § 1101(a)(48)(A).  Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008).  But the Fourth Circuit Court of Appeals recently held that where an alien does not admit guilt in a criminal proceeding and a judge defers further proceedings and places the defendant on probation that the alien has not admitted facts justifying a finding of guilt and the court has not engaged in a judicial finding of facts justifying a finding of guilt. Crespo v. Holder, __ F.3d ___, No. 09-2214 (4th Cir. 2011).

Which Crimes Are Aggravated Felonies?

In 1997 President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  That law established the Congress' original list of aggravated felonies at 8 USC 1101(a)(43).  Department of Homeland Security and the courts have since expanded the number of crimes that constitute aggravated felonies, but the initial list enacted by Congress included:

See the list at left to view the original list of aggravated felonies listed under 8 USC 1101(a)(43).

Divisible Statutes: When a Statute Describes More than One Type of Conduct

Generally, when a criminal statute includes some crimes that may be crimes of moral turpitude and others that may not be, an alien convicted under the statute is not deportable for a moral turpitude crime unless the record of conviction demonstrates that the particular offense involved moral turpitude.  All possible crimes encompassed within a statutory provision must necessarily involve moral turpitude in order to find that a conviction under the statute is for a crime involving moral turpitude.  Hamden v. INS.