Aggravated Felony Strategies

Aggravated Felonies bar most Respondents from most, but not all forms of discretionary relief.

The two forms of discretionary relief that still apply are:

  1. 212(c) . If you were convicted of your crime before 1988 this form of relief remains available for most offenses, including aggravated felonies. If the offense was between 1988 and 1997, there is a dynamic area of case law which may provide for the availability of 212(c) relief. If the crime was committed after April 1997, there is some authority that permits for the application in VERY, VERY narrow circumstances. Click here for a more extensive discussion;
  2. Adjustment of status. A person who has either never been a legal permanent resident of the United States or who adjusted status after entering the United States can obtain a waiver of most criminal offenses including aggravated felonies (other than 101(a)(43)(b)). See In Re: Sidney Michel and Matter of J-H-J- , 26 I.&N. Dec. 563 (BIA 2015) .

Aggravated Felonies may bar relief in the form of Withholding of Deportation (now called Restriction on Removal).

Aggravated Felonies do not bar relief under the convention against torture.

Aggravated Felony cases, which make up a significant portion of the Berke Law Offices practice, are very difficult to defend. We take the following approach to the defense of a typical aggravated felony case:

  • What is the status of the respondent?
    • If a non-Legal Permanent Resident:
      • Is the crime truly an aggravated felony?
      • Does the crime render the Respondent inadmissible?
      • Does the Respondent have an immediately or imminently available visa and a lawful entry or benefit of INA §245(i)?
      • Is the Respondent's crime waivable under INA Section 212(h)?
      • If the answer to these questions is "yes", see adjustment of status.
    • If a Legal Permanent Resident:
      • Did the Respondent Adjust Status AFTER entering the United States?
      • Is the crime truly an aggravated felony?
      • Did the conviction precede the repeal of 212(c), April 1, 1997 or fit within the narrow extension?
      • Can the service meet its burden of proof?
      • Is the crime subject to a collateral attack in the court in which the conviction was obtained?
      • Can the Respondent make a non-frivolous claim for Withholding of Removal?
        • Is the crime a "particularly serious crime"?
      • Can the Respondent make a non-frivolous claim for Relief under the convention against torture?

Common misconceptions about Aggravated Felonies in immigration cases

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 absence 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.