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Crimes to Avoid
In this article I shall give an overview of the term "aggravated felony" and the types of crimes that come within its definition. The United States Supreme Court in the case of Demore v. Kim 276 F.3d 523 (2003), held that lawful permanent residents ("LPR") charged with aggravated felonies were not entitled to an individual bond hearing during their removal proceedings. This means not only that an LPR charged with an aggravated felony faces permanent banishment from the United States but also that he or she will be held in detention until the removal proceedings have concluded.
A life that is lived within the law is the best way to avoid an aggravated felony. However, at times seemingly minor crimes such as a misdemeanor theft conviction could become aggravated felonies if a sentence of one-year is imposed. Many LPRs, charged with "aggravated felonies," come to my office to seek legal assistance when they are already in removal proceedings. Unfortunately, many a time at this stage it is next to impossible to prevent someone from being deported from this country. Unless a criminal sentence is modified and/or other successful post-conviction relief is obtained in a criminal court, there is little hope for relief from removal in immigration court for someone charged with an aggravated felony. Therefore, from the onset it is crucial to avoid a crime that comes within the definition of an aggravated felony in order to give an immigration attorney a fighting chance in seeking any kind of "discretionary relief" in removal proceedings.
The term "aggravated felony," is defined in Immigration Nationality Act ("INA") ~101(a)(43). It lists a number of crimes that are called aggravated felonies. Below, I will briefly describe some of the more common aggravated felony offenses and some simple solutions to avoid these crimes.
1. Murder, Rape, Sexual Abuse of a Minor. Murder, rape and sexual abuse of a minor are the most serious aggravated felonies and they trigger permanent removal from the United States regardless of the length of a sentence or an injury to the victim. Someone convicted of the above crimes has no relief available in immigration court except under Article III of the Convention Against Torture.
2. Theft and Fraud Offenses. Certain crimes come within the definition of an aggravated felony only if a sentence of one year or more is imposed and/or loss to the victim exceeds $10,000. For example, INA 101(1)(43)(G) makes a theft offense an aggravated felony only if a sentence of one year or more is imposed in the criminal proceedings. Similarly, a fraud conviction under INA ~101(a)(43)(M) is an aggravated felony only if the loss to the victim exceeds $10,000. Therefore, it is imperative for an LPR to take great caution when he or she pleads to any type of theft offense or a crime involving fraud, misrepresentation, deceit, etc. It is important to know that a "suspended" sentence of 365 days or more is still counted as a one-year sentence thus triggering an aggravated felony. However, a sentence of 365 days or more that is modified to less than one year (364 days or less) will avoid an aggravated felony for immigrant purposes.
3. Drug Offenses. Drug trafficking offenses are always aggravated felonies regardless of the amount of drugs involved or the length of the sentence. Under the Federal Controlled Substance Act, trafficking of a number of controlled substances triggers the aggravated felony ground of removal. Even a non-trafficking drug offense could become an aggravated felony if the offense was a felony within the jurisdiction where the crime occurred. For example, cocaine possession in California is a felony, thus an aggravated felony for immigration purposes. On the other hand possession of 30 grams or less of marijuana for personal use is not a felony and is not a deportable offense for immigration purposes. Always avoid a drug trafficking offense and plea to a lesser charge of "solicitation" or "accessory after the fact" to a drug offense. This may prevent the crime from becoming an aggravated felony. Please note that solicitation of drugs may still make an LPR deportable but he or she will avoid the harsh immigration consequences associated with drug trafficking offenses. Moreover, in the 9th Circuit, first simple possession of an controlled substance that is expunged uner a state rehabilitation statute is also not a deportable offense.
4. Crimes of Violence. A crime of violence is a deportable offense if a sentence of one year or more is imposed. The definition of a crime of violence is broadly interpreted by immigration courts and any crime which by its very nature uses force and/or a substantial likelihood of use of force comes within this definition. Crimes, such as assault, battery, robbery, burglary, domestic violence, arson, etc., are considered crimes of violence. A sentence of one year or more for any of these crimes will trigger an aggravated felony charge. Remember that courts have interpreted crimes of violence very broadly. For example, the Board of Immigration Appeals ("BIA") has held that an alien convicted of aggravated driving while under the influence and sentenced to two and half years in prison was convicted of a crime of violence. Similarly, statutory rape, involving two consenting people, is a crime of violence for immigration purposes. Criminal defense attorneys representing non-citizens must thoroughly analyze each case to avoid a sentence of 365 or more days for any crime that may conceivably be a crime of violence.
5. Domestic Violence. Domestic violence is a deportable offense regardless of the sentence involved. An LPR convicted of a domestic violence charge in the state where he or she resides is deportable under INA ~237(a)(2)(E)(i). As mentioned above, domestic violence is considered a crime of violence and will become an aggravated felony if a sentence of one year or more is imposed. An example of this is a client who had a domestic violence conviction under Texas law in 1994, and was put into removal proceedings when he applied for naturalization in 2001. The client, while residing in Texas, had pled guilty to a domestic violence offense for which he received a thirteen-month suspended sentence. Therefore, avoid a sentence, actual or suspended of 365 days or more any domestic violence offense.
Thre are numerous other offenses such as supervision of a prostitution business, commercial bribery, counterfeiting, forgery, obstruction of justice, etc. that could also become aggravated felonies.
This article was an attempt to familiarize the readers with some common aggravated felonies.
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