From Wikipedia, the free encyclopedia Aggravated felony
Aggravated felony
In United States immigration law, the term aggravated 19. perjury, tampering with witnesses, or obstruction of
felony refers to a broad category of crimes that carry cer- justice, for which the sentence imposed was one year
tain severe consequences for aliens seeking asylum, le- or greater
gal permanent resident status, citizenship, or avoidance 20. failing to appear in court in relation to a criminal
of deportation proceedings. When the category of "ag- prosecution where the potential sentence is two
gravated felonies" was added to the Immigration and Na- years or more
tionality Act in 1988, as a response to a heightened con- 21. any attempt or conspiracy to commit any of these
cerns about drug abuse, it encompassed only murder and offenses
trafficking in drugs or firearms.[1] The Antiterrorism and In Lopez v. Gonzales, the Supreme Court ruled that because
Effective Death Penalty Act of 1996 (AEDPA) and the Il- immigration law is under the control of the federal gov-
legal Immigration Reform and Immigrant Responsibili- ernment, the definitions of any terms on this list comes
ty Act of 1996 (IIRIRA) both tremendously expanded the from federal law, not state law. For example, in Leocal v.
category. AEDPA added crimes related to gambling and Ashcroft, 543 U.S. 1 (2004), the Court ruled that DUI is not
passport fraud; IIRIRA added a great many more crimes, an aggravated felony if the DUI statute that defines the
including certain crimes of a sentence of at least a year offense does not contain a mens rea element or otherwise
regardless of whether the sentence had been suspended. allows a conviction for merely negligent conduct.
Under present law, 8 U.S.C. § 1101(a)(43), an aggravated An alien convicted of an aggravated felony may not:
felony includes any crime described on the following list: • receive asylum in the United States
1. murder, rape, or sexual abuse of a minor • become a citizen
2. illicit trafficking in a controlled substance, including • subsequently enter the United States
a drug trafficking crime • have removal orders cancelled without specific
3. illicit trafficking in firearms, destructive devices, or authorization of the Attorney General
explosive materials At the same time, aliens convicted of aggravated felonies
4. money laundering (see 18 U.S.C. § 1956) are automatically deported through expedited proce-
5. certain explosives and firearms crimes (see 18 dures intended to ensure that the deportation occurs as
U.S.C. § 842, 18 U.S.C. § 924, and 26 U.S.C. § 5861) soon as the alien is released from prison after serving the
6. "crimes of violence," as defined in 18 U.S.C. § 16, for sentence imposed for the underlying crime. These de-
which the sentence imposed was one year or greater portation orders are not subject to review by the federal
7. theft or burglary offenses, for which the sentence courts, although federal courts have ruled that they may
imposed was one year or greater determine which crimes constitute aggravated felonies.
8. making ransom demands (see 18 U.S.C. § 875 et seq.) IIRIRA required that aliens convicted of aggravated
9. certain child pornography crimes (see 18 felonies must be detained while awaiting removal, result-
U.S.C. § 2251) ing in the detention of far more aliens than before the
10. racketeering crimes, for which a sentence of one Act took effect. In Demore v. Kim, 538 U.S. 510 (2003), the
year imprisonment or more may be imposed[2] Court ruled that the mandatory detention provision of
11. prostitution crimes, supervising prostitutes, or IIRIRA was constitutional.
transporting persons across state lines for purposes The definition of aggravated felony has significantly
of forcing them into prostitution expanded since its inception in 1988. A series of amend-
12. disclosing national security information ments have expanded its reach to the point that an ag-
13. fraud on another person or against the government, gravated felony need not aggravated, nor a felony, to
where the amount of loss exceeds $10,000 trigger the consequences of such a conviction.
14. alien smuggling A related use of the term "aggravated felony" comes
15. illegally entering or reentering the United States in the context of the definition of the crime of illegal
16. passport fraud, for which the sentence imposed was reentry into the United States following deportation, 8
one year or greater U.S.C. § 1326, and the corresponding sentencing en-
17. failing to report to serve a prison sentence where the hancement provided by the Federal Sentencing Guide-
underlying offense is punishable by imprisonment lines. It is a crime for an alien to enter or be found in
for a term of 5 years or more[3] the United States after that alien has been deported. The
18. bribery, counterfeiting, forgery, or trafficking in maximum sentence for this crime is 2 years; however, if
vehicles with altered identification numbers
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From Wikipedia, the free encyclopedia Aggravated felony
that deportation follows a conviction for an aggravated makes a person deportable without regard to the actual
felony, the maximum sentence increases to 20 years. or potential sentence attached to the conviction.
Furthermore, the guideline that corresponds to this
crime typically doubles or triples the sentence the alien
would otherwise have received if the deportation follows
Sources
conviction for an aggravated felony. In Almendarez-Torres • Immigration Law and Procedure, 5th ed., by David
v. United States, 523 U.S. 224 (1998), the Supreme Court Weissbrodt and Laura Danielson
held that this increased maximum sentence did not vio-
late the Sixth Amendment.
References
[1] See Pub. L. 100-690, 102 Stat. 4181, Section 7342
Comparison to Moral Turpi- (Nov. 18, 1988)
tude Crimes [2] 8 U.S.C. § 1101(a)(43)(J) (2006) "an offense
described in section 1962 of title 18 (relating to
The consequences of making a crime an aggravated racketeer influenced corrupt organizations), or an
felony are far reaching. One major consequence is that, offense described in section 1084 (if it is a second
unlike the deportability ground for moral turpitude or subsequent offense) or 1955 of that title
crimes, aggravated felonies do not have to be committed (relating to gambling offenses), for which a
within five years after admission into the U.S. to give rise sentence of one year imprisonment or more may
to deportability. (E.g. a Lawful Permanent Resident who be imposed"
was admitted into the U.S. as a small child and who com- [3] 8 U.S.C. § 1101(a)(43)(Q) (2006). "an offense relating
mits an aggravated felony at age 60 becomes deportable). to a failure to appear by a defendant for service of
Also, unlike the moral turpitude provision of the Im- sentence if the underlying offense is punishable by
migration and Nationality Act, an aggravated felony imprisonment for a term of 5 years or more"
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Categories:
• United States immigration law
• Criminal law
• American legal terms
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