Aggravated Felony: Effect on Immigration Status

From an immigration standpoint, a conviction for an Aggravated Felony is the worst situation for an individual. Simply, it makes both your immigration attorney’s and criminal lawyer’s work that much more difficult. With other crimes, such as Crimes Involving Moral Turpitude, the individual still has a chance of not getting removed, eventually getting a Green Card or becoming a US citizen. But if you are or have been convicted of an Aggravated Felony, it becomes much more difficult to do any of those things. Additionally, there are further problems that come along with the Aggravated Felony conviction as your immigration lawyer will explain. One of the biggest concerns is the fact that the potential for being permanently barred from ever returning to the United States exists.

• Arrest and Convictions: Immigration Consequences Resource Page
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• Federal Criminal Defense Lawyers: From Investigation Through Trial

What is an Aggravated Felony?

The term “Aggravated Felony” is very misleading because it doesn’t necessarily require the individual to be convicted or arrested for a felony or for the offense to be of an aggravated nature. Plenty of state crimes can qualify as an aggravated felony, even if it’s only a misdemeanor or not specifically designated in the state’s criminal statute. The following types of offenses can be considered an aggravated felony:

• Murder
• Running a prostitution business
• Fraud
• Bribery
• Treason
• Sabotage
• Ransom
• Money laundry
• Drug trafficking
• Firearms trafficking
• Any violent crime resulting in a sentence lasting at least one year
• Theft resulting in a sentence lasting at least one year
• Rape
• Obstruction of justice
• Tax evasion
• Alien smuggling
• Sexual abuse of a child

In the State of New York, there is no crime that is defined by statutes as an “Aggravated Felony”. Because of this, before you accept any plea you must understand and review the crime or crimes you are charged with to further understand what, if any, you can plea to with minimal repercussions to your status in America.

Immigration Consequences of an Aggravated Felony

Aggravated Felony convictions whether in New York State pursuant to the New York Penal Law or as a result of conduct in any other jurisdiction, can be extremely severe. An individual potentially faces almost immediate removal, detention until removal, or permanent bars to US citizenship or visiting the United States ever again. Should the individual try to return to the United States despite this lifetime ban, they face severe consequences for trying to reenter, including being imprisoned for up to 20 years and still not being allowed entrance. To make matters worse, some of the forms of relief usually available for those deemed inadmissible or subject to removal will be unavailable to the individual.

Green Card holders who have been convicted of an Aggravated Felony likely face removal, a permanent bar to returning to the US and a permanent bar to becoming a US citizen. The Green Card holder can also be detained during the removal proceedings. Bond (paying money or providing assets to the court to be released) is rarely available to those detained, and if it is available, it’s very difficult to secure.

An individual who is not a lawful permanent resident faces the same potential immigration consequences with an Aggravated Felony conviction, but is in an even worse position, if that is possible, because they can be removed without a removal hearing.

Even if an individual is at risk of being persecuted upon return to his or her country, an Aggravated Felony conviction can make it almost impossible to seek asylum, obtain a withholding of removal or be allowed the option of voluntary departure.

Options for Individuals Convicted of an Aggravated Felony

Individuals convicted of an Aggravated Felony aren’t completely without hope or legal options. Your immigration lawyers can explain that all Aggravated Felony convictions are not the same. Even if removal or rejection of a Green Card or US citizenship application is inevitable, there may be ways to lessen the negative consequences. For instance, an individual might be barred from US citizenship, but could avoid removal. In such a scenario, that person would be able to reside in the United States with his or her family in a legal capacity, but not one that will provide the same safeguards and benefits of citizenship.

Individuals who are actively mired in criminal proceedings are surprisingly in the best shape when compared to those who have already pleaded or been convicted. There are opportunities to plea bargain and avoid more serious immigration repercussions if the underlying criminal conviction is handled a certain way. For example, some crimes are Aggravated Felonies only if they result in a sentence lasting one year or more. As such, if a defendant has been charged with one of these types of crimes, the defendant can plea bargain with the prosecutor to plead guilty but only face a sentence lasting 364 days. In this situation, the defendant can avoid having an Aggravated Felony conviction on their criminal and immigration record due to the agreement with prosecutors or a court that sentence will be one day short of the Aggravated Felony threshold.

There are other options available for those with an Aggravated Felony conviction. They are rarely successful or only apply in extremely limited circumstances, but they are ones you might explore with your immigration attorney. These options include obtaining a withholding of removal by asking for relief under the Convention Against Torture or applying for a T or U visa, which are available to victims of alien smuggling or those who will cooperate with the United States in prosecuting others for the crime of alien smuggling.

The bottom line is that if an individual wants to live and work in the United States, an Aggravated Felony conviction should be avoided at all costs. In order to do this, obtaining the legal services of an attorney experienced in both criminal and immigration matters provides the best chance possible.

Protect Yourself from the Consequences of an Aggravated Felony

Whether you are facing criminal charges in New York State and need both a criminal lawyer and an immigration attorney, Saland Law has the experience and knowledge to best advocate a resolution, or for that matter handle your trial, to avoid a conviction for an Aggravated Felony. If you have already pleaded and you need guidance or assistance to best maintain your legal status or ability to continue to reside in New York or elsewhere in the United States, Saland Law’s immigration counsel is more than capable of addressing your concerns and identifying what, if any, steps can be taken to protect your future in America.

• New York Immigration Lawyers: From Visas to Green Cards and Naturalization

Take the steps to protect your life and future. Take the time to identify all legal avenues to keep your family together or life as secure as possible in the United States. One more miscalculation might just ended it all.

Call the New York immigration lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.