Aggravated Felonies and Your Immigration Status: 8 USC 1101(a)(43)

Maintaining or securing legal immigration status in the United States is a privilege. There are many categories of criminal offenses, should you commit them, that the Federal Government will examine when determining whether you can renew your visa, maintain your residency or green card, become a naturalized citizen, be deported or denied admissibility or future entry. New York State does not have its own rules, but if you are convicted of a crime, and more specifically a felony in New York, and that crime is an Aggravated Felony, then your otherwise legal (or illegal) immigration status in the United State is in jeopardy. In fact, pursuant to 8 United States Code Section 1101(a)(43), if you are convicted of an Aggravated Felony, you can be removed and denied the ability to ever return to the United States. It makes no difference whether you are an H1B or F1 visa holder...or have any other status as a legal resident or not. You have been warned. If you are arrested for an offense in New York City or anywhere in the State of New York for an offense that is considered an Aggravated Felony, it is critical that you and your criminal defense attorney implement a defense that at a minimum reduces the crime you face and your collateral exposure as an Aggravated Felon.

Even if your conduct is not called a or described as an Aggravated Felony under the New York Penal Law, 8 USC 1101(a)(43) allows the Federal Government to make a determination whether your conviction reaches the Aggravated Felony threshold. The following are categories of crimes as set forth by Congress that considered Aggravated Felonies:

• Murder, Rape and Sexual Abuse of a Minor (A)
• Trafficking Controlled Substances and Drugs - Cocaine, Heroin, Etc. (B)
• Trafficking in Destructive Devices – Firearms, Bombs and Explosives (C)
• Money Laundering – Includes Tax Evasion, Illegal Transactions and Related Frauds in Excess of $10,000.00 USC (D)
• Offenses Related to Explosive Materials (E)
• Crimes of Violence – See 18 USC 16 and Sentences of at Least One Year in Prison (F)
• Theft Crimes – Include Offenses such as Burglary and Sentences of at Least One Year in Prison (G)
• Ransom Crimes – Offenses Relating to the Demand or Receipt of Ransom (H)
• Child Pornography – Crime and Offense Speaks for Itself (I)
• RICO and Organized Crime – Enterprise Corruption (J)
• Prostitution and Slavery Crimes – Promoting Prostitution and Involuntary Servitude (K)
• Crimes Involving National Defense and Classified Information (L)
• Fraud and Deceit Crimes – Where Victim or Government (Tax Evasion) Sustains Loss in Excess of $10,000 (M)
• Alien Smuggling – Not if the Person is an Immediate Family Member (O)
• Crimes Involving False Documents – Forged Instrument and Forgery Crimes Relating to Documents such as Passports and the Sentence is in Excess of One Year in Prison (P)
• Failure to Appear (Warranting) for a Sentence – Underlying Offense Must be Punishable by Five Years in Prison or More (Q)
• Commercial Bribery, Forgery and Trafficking in Vehicles – Sentence at Least One Year in Prison (R)
• Obstruction of Justice or Perjury - Sentence at Least One Year in Prison (S)
• Failure to Appear (Warranting) to Dispose of or Address a Felony – Sentence of at Least Two Years May Be Imposed (T)
• Attempt to Commit Any Aggravated Felony (U)

Because Aggravated Felonies can lead to complete inadmissibility regardless of your current status in the United States, it is essential to consult with your criminal defense lawyer so he or she can examine the allegations, assess the strengths and weaknesses of the accusation and pursue your strongest defense. The following are some New York Penal Law crimes that demand immediate attention with your criminal defense attorney as they will or potentially can expose you to an Aggravated Felony (in some offenses it depends on the subsection charged):

• Felony Second Degree Assault: New York Penal Law 120.05
• Felony First Degree Assault: New York Penal Law 120.10
• Felony Third Degree Rape: New York Penal Law 130.25
• Felony Third Degree Criminal Sexual Act: New York Penal Law 130.40
• Felony First Degree Unlawful Imprisonment: New York Penal Law 135.10
• Felony First Degree Criminal Trespass: New York Penal Law 140.17
• Felony Third Degree Burglary: New York Penal Law 140.20
• Felony Third Degree Criminal Mischief: New York Penal Law 145.05
• Felony Fourth Degree Grand Larceny: New York Penal Law 155.30
• Felony Third Degree Grand Larceny: New York Penal Law 155.35
• Felony Third Degree Robbery: New York Penal Law 160.05
• Felony Fourth Degree Criminal Possession of Stolen Property: New York Penal Law 165.45
• Felony Third Degree Criminal Possession of Stolen Property: New York Penal Law 165.50
• Felony Second Degree Forgery: New York Penal Law 170.10
• Felony Second Degree Criminal Possession of a Forged Instrument: New York Penal Law 170.25
• Felony First Degree Criminal Contempt: New York Penal Law 215.51
• Felony Fifth Degree Criminal Possession of a Controlled Substance: New York Penal Law 220.06
• Felony Third Degree Criminal Possession of a Controlled Substance: New York Penal Law 220.16
• Felony Fifth Degree Criminal Sale of a Controlled Substance: New York Penal Law 220.31
• Felony Third Degree Criminal Sale of a Controlled Substance: New York Penal Law 22.309
• Felony Third Degree Criminal Sale of Marihuana: New York Penal Law 221.45
• Felony Third Degree Promoting Prostitution: New York Penal Law 230.25
• Felony First Degree Aggravated Harassment: New York Penal Law 240.31
• Felony Second Degree Criminal Possession of a Weapon: New York Penal Law 265.03
• Felony Third Degree Criminal Sale of a Firearm: New York Penal Law 265.11

Do not be misguided or misinformed by the list above. An Aggravated Felony need not be an actual felony pursuant to the New York State Penal Law. You could be convicted of a misdemeanor crime, which is punishable by up to one year in jail, the threshold for many Aggravated Felony Offenses. As such, could misdemeanor Third Degree Assault pursuant to PL 120.00, Third Degree Criminal Possession of a Forged Instrument pursuant to PL 170.20, Fourth Degree Promoting Prostitution pursuant to PL 230.20 or Second Degree Aggravated Harassment pursuant to PL 240.30 be an Aggravated Felony? For better or worse (likely worse), yes.

Re-read the above sub-title, but don’t get too excited. It would be terrific for an accused if an arrest for an Aggravated Felony was disposed of in a manner that did not violate the statute. You would be free and clear of immigration issues and collateral consequences, right? The short answer is a clear “no.” If your conviction is one involving domestic violence, drugs, moral turpitude (CIMT) or minor children, the ramifications can still be the same. That is, you may be subject to removal, be unable to renew your status or be subject to inadmissibility in perpetuity.

• Saland Law Immigration Consequences General Information Page
• Crimes Involving Moral Turpitude (CIMT) and Your Immigration Status
• Controlled Substance Crimes and Your Immigration Status
• Crimes Against Children and Your Immigration Status
• Domestic Violence Crimes and Your Immigration Status
• Firearm Crimes and Your Immigration Status
• Prostitution Crimes and Your Immigration Status

Do not view the information contained on this site as a quick answer to your concerns about how your arrest and potential conviction can lead to disastrous immigration results. It would be a shame that despite your hard work and efforts, one allegation – true or not – can result in your removal or inability to return to the United States. Arm yourself with knowledge and advocacy. Let the New York criminal lawyers and former Manhattan prosecutors at Saland Law put their experience to work for you.

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