An aggravated felony is a category of criminal offenses that originally covered murder, rape, and sexual abuse of a minor.  Subsequent legislation has significantly expanded the scope of crimes that fall into this category.  Currently, if the length of the sentence imposed as at least one year, you may be considered to have committed an aggravated felony.  If the dollar amount of loss exceeds $10,000 in a crime, like embezzlement, it would also be an aggravated felony.  Today, more than fifty general classes of crimes are specifically listed as aggravated felonies.  These include crimes of violence, theft and burglary, fraud and deceit, trafficking of controlled substances or firearms, and a variety of other crimes such as child pornography, alien smuggling, and obstruction of justice.  Many non-citizens are also unaware that if they were convicted of such a crime in a foreign country, but completed their incarceration anytime within the last fifteen years, that conviction would still be deemed an aggravated felony.  It is not surprising then, that the term “aggravated felony” has become a very complicated term in immigration law.

Generally, an aggravated felony applies to criminal offenses in violation of state or federal laws, but if a conviction was classified as a misdemeanor under state law, it may still be considered an aggravated felony under federal law.  If a conviction is a state felony, but not considered a federal felony, then it may not be an aggravated felony.  The problem is that there are varying interpretations in different jurisdictions.  As a result, without careful and expert analysis, knowing whether or not you have been convicted of an aggravated felony for immigration purposes has become very complicated.  Another problem arises when a state criminal statute covers conduct that is an aggravated felony and other conduct that is not.  In such instances, a complex determination would have to be made to see if the specific offense committed constitutes an aggravated felony under immigration law.

For a finding of an aggravated felony it is sufficient that you were convicted and found guilty by a court, entered a guilty or no-contest plea, or admitted sufficient facts to warrant a finding of guilt.  The aggravated felony provision regarding a sentence of one year or more applies to sentences imposed and actually executed.  This means that when a sentence carries a term of one year or more you may still be considered to have committed an aggravated felony for immigration purposes even if you were not incarcerated or confined for the full year, and in many jurisdictions, even if you had the sentence expunged.

If you have recently been charged or convicted of a crime that you are concerned it may be an aggravated felony, the consequences that could result may be severely damaging to your immigration hopes. Contact Shihab & Associates Co., LPA, to assist you in this complex area of immigration law and please read our other hot topic  “What are the Consequences of an Aggravated Felony?”