An aggravated felony in the immigration context is different than in the criminal context. What an aggravated felony is has changed over the years. Currently, if you can be sentenced to at least a year, the crime could be an aggravated felony, even if it is a misdemeanor. Additionally, if the amount of money at issue in the case is over $10,000 (i.e. embezzlement), this could also be an aggravated felony. Many crimes are included in this broad category, including crimes of violence, theft, fraud, drug & firearm trafficking, child pornography, sex crimes, etc.
To be found to have committed an aggravated felony, immigration can use a guilty finding in a jury trial, a guilty or no-contest plea, or other sufficient facts that can be used to find guilt. The only thing immigration cares about is what you were sentenced to. If you were sentenced to 1 year in jail but only served a few months, in the eyes of the immigration court this will still be considered an aggravated felony.
So what could happen to you if you have an “aggravated felony”? First of all, you would be put into deportation proceedings. You would fall under the INA’s “mandatory detention” provision. This means that it is almost guaranteed that immigration will take you into custody until you are ultimately deported. Finally, you would be ineligible to stop your deportation through some sort of relief (cancellation of removal, asylum), or through some sort of governmental waiver.
With that said, it is best to try to keep yourself from having an aggravated felony on your record. A good criminal defense attorney who understands immigration laws can help you. For example, if a prosecutor wants to give you a one year sentence, it is possible to plea the case to a sentence of 364 days instead of the full 365, which would keep it from being an aggravated felony. A crime involving $18,000 could be broken up into two separate crimes of $9,000 which would keep both from being aggravated felonies in the eyes of immigration.
It is extremely important to think about immigration consequences when dealing with a criminal case. David Breston is a houston deportation lawyer. If you need deportation defense in houston, call David Breston at 713 224 4040.
