The immigration definition of an “aggravated felony” does not correspond to the definition of an aggravated felony under state law. In fact, under the immigration definition of the “aggravated felony,” a conviction does not need to be “aggravated” or even a “felony.” It can be a misdemeanor under state law. Also, a lawful permanent resident must be convicted of the offense, not merely commit it, for aggravated felony penalties to apply.
Determination of whether a felony conviction under state law is an “aggravated felony” under the immigration law requires a comparison of a state definition of a crime to a federal definition of a crime. A state offense is an aggravated felony only if all of the elements of the state offense are included in the federal offense.
For example, a lawful permanent resident is convicted of a first-degree misdemeanor for simple battery under Florida law and sentenced to 2 years in prison. The government places the LPR in removal on the basis that the LPR was convicted of a violent felony, which is an aggravated felony under federal law. Under Florida law, a battery occurs when a person either “[a]ctually and intentionally touches or strikes another person against [his] will,” or “[i]ntentionally causes bodily harm to another person.” Under federal law, “a violent felony” is an offense that has as an element the use . . . of physical force against the person of another. However, there is no such element in the definition of a simple battery under Florida law. Consequently, the LPR’s conviction is not an aggravated felony for purposes of immigration proceedings.
If the technical elements of the offense under state law and federal law match, a criminal attorney may be able to negotiate a plea to a different non-“aggravated felony” charge and sentencing alternatives.
The following convictions qualify as “aggravated felony” for purposes of deportability:
- Murder, rape, or sexual abuse of a minor;
- Illicit trafficking in a controlled substance, including a drug trafficking crime;
- Illicit trafficking in firearms or destructive devices;
- Certain offenses relating to money laundering where amount of funds exceeded $10,000;
- Certain firearm or explosive materials offenses;
- A “crime of violence” if the term of imprisonment (even if suspended) is one year or more;
- A theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year;
- An offense relating to the demand for or receipt of ransom;
- An offense relating to child pornography;
- An offense relating to racketeer influenced corrupt organizations or relating to gambling offenses, for which a sentence of one year imprisonment or more may be imposed;
- An offense that relates to the owning, controlling, managing, or supervising of a prostitution business, or relating to transportation for the purpose of prostitution if committed for commercial advantage; or relating to peonage, slavery, involuntary servitude, and trafficking in persons);
- An offense relating to gathering or transmitting national defense information, disclosure of classified information, sabotage, or treason, protecting the identity of undercover intelligence agents or identity of undercover agents;
- An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or relating to tax evasion in which the revenue loss to the Government exceeds $10,000;
- An offense relating to alien smuggling (except for a first offense in which the person smuggled was the parent, spouse or child);
- An offense relating to an improper entry or illegal reentry by an alien previously deported on the basis of an aggravated felony;
- An offense relating to falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument and for which the term of imprisonment is at least 12 months (except for a first offense in which the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s parent, spouse or child);
- An offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
- An offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
- An offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
- An offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
- An attempt or conspiracy to commit an offense described in this paragraph.
In addition to being subject to removal, a lawful permanent resident convicted of an “aggravated felony” under immigration law is permanently barred from re-entering the U.S. and may be sentenced to up to twenty years in prison if they re-enter illegally. Since an LPR convicted of an “aggravated felony” under immigration law cannot establish good moral character, he or she will be permanently barred from naturalizing as a U.S. citizen.