Aggravated felony

The term aggravated felony was used in the United States immigration law to refer to a broad category of criminal offenses that carry certain severe consequences for aliens seeking asylum, legal permanent resident status, citizenship, or avoidance of deportation proceedings. Anyone convicted of an aggravated felony and removed from the United States "must remain outside of the United States for twenty consecutive years from the deportation date before he or she is eligible to re-enter the United States." The supreme court ruled 5-4 in Sessions v. Dimaya that the residual clause was unconstitutionally vague limiting the term.
When the category of "aggravated felonies" was first added to the Immigration and Nationality Act in 1988, as a response to heightened concerns about drug abuse, it encompassed only murder and trafficking in drugs or firearms. The Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 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.

List of aggravated felonies

The following chart lists all past aggravated felonies :

Letter grade
	murder, rape, or sexual abuse of a minor;
	illicit trafficking in a controlled substance, including a drug trafficking crime ;
	illicit trafficking in firearms or destructive devices or in explosive materials ;
	an offense described in section 1956 of title 18 or section 1957 of that title if the amount of the funds exceeded $10,000;
	an offense described in — section 842 or of title 18, or section 844,,,,, or of that title ; section 922,,,, or,,,,, or or 924 or of title 18 ; or section 5861 of title 26 ;
	a crime of violence for which the term of imprisonment is at least one year;
	a theft offense or burglary offense for which the term of imprisonment is at least one year;
	an offense described in section 875, 876, 877, or 1202 of title 18 ;
	an offense described in section 2251, 2251A, or 2252 of title 18 ;
	an offense described in section 1962 of title 18, or an offense described in section 1084 or 1955 of that title, for which a sentence of one year imprisonment or more may be imposed;
	an offense that — relates to the owning, controlling, managing, or supervising of a prostitution business; is described in section 2421, 2422, or 2423 of title 18 if committed for commercial advantage; or is described in any of sections 1581–1585 or 1588–1591 of title 18 ;
	an offense described in — section 793, 798, 2153 or 2381 or 2382 of title 18; section 421 of title 50 ; or section 421 of title 50 ;
	an offense that — involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or is described in section 7201 of title 26 in which the revenue loss to the Government exceeds $10,000;
	an offense described in paragraph or of section 1324 of this title, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent to violate a provision of this chapter;
	an offense described in section 1325 or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
	an offense which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546 of such title and for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent to violate a provision of this chapter;
	an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
	an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
	an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
	an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
	an attempt or conspiracy to commit an offense described in this paragraph.

Controversial issues involving an aggravated felony

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 be aggravated, nor a felony, to trigger the consequences of such a conviction. In United States of America v. Winston C. Graham, 169 F.3d 787, the Third Circuit Court of Appeals held that the respondent's 1990 petit larceny, a Class A misdemeanor with a maximum of one year imprisonment under New York law, constitutes an aggravated felony.
In Lopez v. Gonzales, 549 U.S. 47, the Supreme Court ruled that because immigration law is under the control of the federal government, the definitions of any terms on the aggravated felony list comes from federal law, not state law. This holding calls into question the result in Graham because under federal law a crime must be punishable by imprisonment for a term "exceeding" one year in order to be considered an aggravated felony, otherwise it is cruel and unusual punishment under the Eighth Amendment to the United States Constitution. In, Congress explains that the term "crime punishable by imprisonment for a term exceeding one year does not include... any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less."
In Leocal v. Ashcroft,, the Court ruled that driving under the influence 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.
In Popal v. Gonzales, 416 F.3d 249, 254, the Third Circuit Court of Appeals held that Pennsylvania simple assault does not constitute crime of violence under 18 USC § 16 and is therefore not an aggravate felony.
In Sessions v. Dimaya, The Supreme Court struck down the "residual clause", which classified every felony that, "by its nature, involves a substantial risk" of "physical force against the person or property" as an aggravated felony

Consequences of an aggravated felony conviction

An alien convicted of an aggravated felony may not:

enter the United States without being pardoned or paroled by the government
have removal orders cancelled without specific authorization of the Attorney General
receive asylum in the United States, although he or she may possibly qualify for the United Nations Convention against Torture but depending on the case and situation of his or hers country of origin
become a citizen of the United States

At the same time, any alien convicted of an aggravated felony is automatically subject to expedited removal 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 crime constitutes an aggravated felony.
IIRIRA required that any alien convicted of an aggravated felony must be detained while awaiting removal, resulting in the detention of far more aliens than before the Act took effect. In Demore v. Kim,, the Court ruled that the mandatory detention provision of IIRIRA was constitutional.

Consequences of illegal re-entry after deportation

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,, and the corresponding sentencing enhancement provided by the Federal Sentencing Guidelines. It is a crime for an alien to illegally enter or without be found without permission 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,, 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, aggravated felonies do not have to be committed within five years after admission into the U.S. to give rise to deportability..
Some aggravated felonies make a person deportable without regard to the actual or potential sentence attached to the conviction. For details, see list of aggravated felonies in the chart at the top.