What Is an Aggravated Felony
An aggravated felony is a category of criminal conviction that makes a non-citizen deportable and bars them from nearly all forms of immigration relief. Under 8 U.S.C. Section 101(a)(43), the law defines 16 categories of aggravated felonies, including crimes of violence, drug trafficking, sexual abuse of a minor, and theft offenses with sentences of one year or more. A conviction in any of these categories triggers mandatory deportation proceedings with virtually no opportunity for relief, even if you have a green card, pending visa applications, or U.S. citizen family members.
Criminal Categories That Qualify
The 16 aggravated felony categories under immigration law are broader than you might expect. They include crimes of violence (felony assault, burglary, arson), trafficking in drugs or firearms, sexual abuse of a minor, unlawful trafficking in passports, crimes involving fraud with loss exceeding $10,000, money laundering over $10,000, crimes of violence for which the term of imprisonment is at least one year, and certain firearm or destructive device offenses. Importantly, the immigration definition differs from criminal law definitions. For example, a conviction for possession with intent to distribute a controlled substance counts as drug trafficking for immigration purposes, even if your criminal record says "simple possession." A burglary conviction, regardless of the value of what was taken, qualifies if the sentence was one year or more.
How It Affects Your Immigration Status
- Green card holders: A conviction triggers deportation proceedings in Immigration Court. USCIS will deny any renewal or replacement applications. You have no access to cancellation of removal, a common form of relief that might otherwise apply to someone facing deportation.
- Visa applicants: If you have a pending employment-based, family-based, or student visa application, an aggravated felony conviction makes you deportable and bars your petition from approval. Any Form I-485 (Application to Register Permanent Residence or Adjust Status) will be denied.
- Priority dates and consular processing: If you were in line for consular processing with an approved visa petition, the conviction retroactively makes you inadmissible. Your case will not proceed to a consular interview.
- Conditional residence: If you held a conditional green card (CR visa holder status), a conviction triggers deportation before you can remove conditions through Form I-751.
What You Need to Know
Many immigrants facing criminal charges do not realize that a guilty plea to what seems like a minor felony can trigger deportation. A sentence of time served (even one day) counts toward the one-year threshold. State court judges are not required to warn you of immigration consequences when you accept a plea agreement, even though a 2010 Supreme Court decision in Padilla v. Kentucky established that your attorney has a duty to advise you. If you were not warned about immigration consequences before pleading guilty, consult an immigration attorney immediately. Some convictions may be challengeable through post-conviction motions if your criminal defense attorney failed to advise you properly.
Common Questions
- Can I stay in the U.S. if I have an aggravated felony conviction? No. If you are convicted of an aggravated felony, you are deportable. You cannot file for asylum, cancellation of removal, or any other form of immigration relief. Voluntary departure is typically your only option to avoid a deportation order on your record.
- Does an aggravated felony conviction prevent future immigration if I leave? Yes. Once deported for an aggravated felony, you are permanently barred from returning to the U.S. without a waiver, and waivers are extremely difficult to obtain. Even a lawful permanent resident status does not protect you.
- What if my criminal conviction was from another country? If you were convicted in another country, the conviction still applies under immigration law if the elements match the U.S. definition. For example, a Canadian burglary conviction with a one-year sentence makes you deportable from the United States.
Related Concepts
- Deportation - the legal process of removing a non-citizen from the U.S.
- Inadmissibility - grounds that bar a person from entering or remaining in the U.S.