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Common misconceptions about Aggravated Felonies in immigration cases

Posted by Robert Berke | Jun 06, 2017 | 0 Comments

1. Myth: "It can't be an aggravated felony because it was only a misdemeanor."
The term "Aggravated Felony" is a term of art. The meaning is independent of any State of Federal definition of the either the term "aggravated" or the term "felony". Many, many misdemeanors are aggravated felonies under the INA. 
2. Myth: "It can't be an aggravated felony, I never went to jail."
There are actually very few categories of aggravated felonies that are dependent on a specific sentence. For instance, while crimes of violence and theft crimes are not aggravated felonies unless a sentence of one year or more has been imposed, the sentence imposed and the sentence served can be two vastly different things because the term imposed includes any portion which was suspended or left unserved due to good behavior or other factors. In fact, most aggravated felony categories require no specific sentence, imposed or otherwise. Drug Trafficking, Sex, and Fraud offenses can all be aggravated felonies if certain conditions exist even in the absense of any term of imprisonment.
3. Myth: "It's definitely an aggravated felony, I was in prison for 10 years." 
Conversely, there are also many crimes which simply are not aggravated felonies regardless of the term of imprisonment imposed. For instance, battery and certain manslaughter offenses under California law do not qualify as aggravated felonies because they lack any element requiring a quantum of violence. These offenses can result in long prison terms and could, under certain circumstances, have no immigration effect at law. 
4. Myth: "I was convicted of an aggravated felony, there is no defense to my deportation."

Attorneys skilled in the representation of criminal aliens win aggravated felony cases all of the time. The law in this area is quite complex and dynamic. There are certain forms of relief such as withholding of removal, 212(c), adjustment with an (h) waiver, among others which are not barred by an aggravated felony conviction. Also, very often a crime which appears on its surface to be an aggravated felony often turns out not to be an aggravated felony. Sometimes the government is simply unable to present clear and convincing evidence that the offense is an aggravated felony. Just within the past year or so, no less than five different distinct offenses were reclassified by the United States Court of Appeals for the 9th Circuit as either aggravated felonies or non-aggravated felonies and they also made drastic changes in the availability of relief. Furthermore, even aggravated felonies are susceptible to being reopened or challenged in the State Courts and any changes to the conviction in the State Court that are not based on rehabilitation alone are binding on the Immigration courts.

About the Author

Robert Berke

Attorney Robert G. Berke has been licensed to practice law in theState of California since 1990 and is a member in good standing of theState Bar of California. He is also admitted to practice in federalDistrict Courts throughout California and in the 5th, 6th, 9th, 10th and11th Circuits of the U....

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