Aggravated felony
Encyclopedia
In United States immigration law, the term aggravated felony refers to a broad category of crimes that carry certain severe consequences for alien
s 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, (a)(43), an aggravated felony includes any crime described on the following list:
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
, , 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:
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, , 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, , 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
, , the Supreme Court held that this increased maximum sentence did not violate the Sixth Amendment
.
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.
Alien (law)
In law, an alien is a person in a country who is not a citizen of that country.-Categorization:Types of "alien" persons are:*An alien who is legally permitted to remain in a country which is foreign to him or her. On specified terms, this kind of alien may be called a legal alien of that country...
s seeking asylum
Asylum in the United States
The United States honors the right of asylum of individuals as specified by international and federal law. A specified number of legally defined refugees, who apply for asylum either overseas or after arriving in the U.S., are admitted annually. Refugees compose about one-tenth of the total...
, legal permanent resident status, citizenship
Citizenship
Citizenship is the state of being a citizen of a particular social, political, national, or human resource community. Citizenship status, under social contract theory, carries with it both rights and responsibilities...
, or avoidance of deportation
Deportation
Deportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...
proceedings. When the category of "aggravated felonies
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
" was added to the Immigration and Nationality Act
Immigration and Nationality Act
The Immigration and Nationality Act of 1952 , also known as the McCarran–Walter Act, restricted immigration into the U.S. and is codified under Title 8 of the United States Code. The Act governs primarily immigration to and citizenship in the United States. It has been in effect since...
in 1988, as a response to a heightened concerns about drug abuse, it encompassed only murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
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, (a)(43), an aggravated felony includes any crime described on the following list:
- murder, rape, or sexual abuse of a minor
- illicit trafficking in a controlled substance, including a drug trafficking crime
- illicit trafficking in firearms, destructive devices, or explosive materials
- money laundering (see )
- certain explosives and firearms crimes (see , , and )
- "crimes of violence," as defined in , for which the sentence imposed was one year or greater
- theft or burglary offenses, for which the sentence imposed was one year or greater
- making ransom demands (see et seq.)
- certain child pornography crimes (see )
- racketeering crimes, for which a sentence of one year imprisonment or more may be imposed
- prostitution crimes, supervising prostitutes, or transporting persons across state lines for purposes of forcing them into prostitution
- disclosing national security information
- fraud on another person or against the government, where the amount of loss exceeds $10,000
- alien smuggling
- illegally entering or reentering the United States
- passport fraud, for which the sentence imposed was one year or greater
- failing to report to serve a prison sentence where the underlying offense is punishable by imprisonment for a term of 5 years or more
- bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers
- perjury, tampering with witnesses, or obstruction of justice, for which the sentence imposed was one year or greater
- failing to appear in court in relation to a criminal prosecution where the potential sentence is two years or more
- any attempt or conspiracy to commit any of these offenses
In Lopez v. Gonzales
Lopez v. Gonzales
Lopez v. Gonzales, 549 U.S. 47 , held that an "aggravated felony" includes only conduct punishable as a felony under the federal Controlled Substances Act, regardless of whether state law classifies such conduct as a felony or a misdemeanor...
, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
Leocal v. Ashcroft
Leocal v. Ashcroft, 543 U.S. 1 , held that aliens may not be deported after being convicted of DUI if the DUI statute that defines the offense does not contain a mens rea element or otherwise allows a conviction for merely negligent conduct....
, , the Court ruled that DUI
Drunk driving (United States)
Drunk driving is the act of operating and/or driving a motor vehicle while under the influence of alcohol and/or drugs to the degree that mental and motor skills are impaired...
is not an aggravated felony if the DUI statute that defines the offense does not contain a mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
element or otherwise allows a conviction for merely negligent conduct.
An alien convicted of an aggravated felony may not:
- receive asylum in the United StatesAsylum in the United StatesThe United States honors the right of asylum of individuals as specified by international and federal law. A specified number of legally defined refugees, who apply for asylum either overseas or after arriving in the U.S., are admitted annually. Refugees compose about one-tenth of the total...
- 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, , 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, , and the corresponding sentencing enhancement provided by the Federal Sentencing Guidelines
Federal Sentencing Guidelines
The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system...
. 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
Almendarez-Torres v. United States
Almendarez-Torres v. United States, , was a decision by the United States Supreme Court which confirmed that a sentencing enhancement based on a prior conviction was not subject to the Sixth Amendment requirement that a jury determine the fact beyond a reasonable doubt.-Facts:In September 1995,...
, , the Supreme Court held that this increased maximum sentence did not violate the Sixth Amendment
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
.
Comparison to Moral Turpitude Crimes
The consequences of making a crime an aggravated felony are far reaching. One major consequence is that, unlike the deportability ground for moral turpitude crimes, 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
Immigration and Nationality Act
The Immigration and Nationality Act of 1952 , also known as the McCarran–Walter Act, restricted immigration into the U.S. and is codified under Title 8 of the United States Code. The Act governs primarily immigration to and citizenship in the United States. It has been in effect since...
, an aggravated felony makes a person deportable without regard to the actual or potential sentence attached to the conviction.