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What happens to your immigration status if you were charged with an Aggravated Felony?

Posted by Arturo Angel Burga | Oct 22, 2024 | 0 Comments

How does an aggravated felony affect your immigration status? Under the Immigration and Nationality Act (INA), being convicted of an aggravated felony can lead to mandatory deportation and make the individual ineligible for most forms of relief, including asylum, cancellation of removal, and adjustment of status. Aggravated felonies include crimes such as drug trafficking, sexual abuse of a minor, and violent crimes.

Aggravated Felonies and Immigration Status: A California Perspective

In immigration law, aggravated felonies are among the most severe criminal offenses that can result in automatic deportation and permanent inadmissibility for non-citizens, including legal permanent residents (LPRs). The category is broadly defined under the Immigration and Nationality Act (INA) § 101(a)(43) and covers various crimes ranging from murder to certain theft offenses with a sentence of at least one year.

In the Ninth Circuit, which covers California, courts have repeatedly affirmed the serious immigration consequences of aggravated felony convictions. Below is a deep dive into how these convictions impact non-citizens in California and potential defense strategies.

Aggravated Felonies: California and Ninth Circuit Interpretations
   
Drug Trafficking Crimes: A conviction under California Health and Safety Code § 11352 (possession with intent to sell) can easily qualify as an aggravated felony, triggering mandatory deportation. Ninth Circuit rulings such as United States v. Pacheco (1999) have expanded the definition of drug-related aggravated felonies, making it difficult for non-citizens to challenge removal.

Domestic Violence: Convictions under California Penal Code § 273.5 for domestic violence often qualify as aggravated felonies, especially if the victim sustained significant injuries. The Ninth Circuit has consistently upheld such deportations, as seen in U.S. v. Becker* (2005).

Murder – Any murder conviction automatically qualifies as an aggravated felony.


Drug Trafficking – Offenses involving the sale, distribution, or manufacturing of controlled substances.


Rape and Sexual Abuse of a Minor – Includes any form of sexual exploitation or abuse of a minor.


Grand Theft – If a sentence of one year or more is imposed.


Firearms Trafficking – Illegal trafficking or sale of firearms or explosives.


Fraud or Tax Evasion – Involving a loss exceeding $10,000.


Money Laundering – Involving amounts exceeding $10,000.

These offenses generally result in mandatory deportation, ineligibility for relief, and permanent inadmissibility for non-citizens. Each offense's classification as an aggravated felony depends on the crime's specifics, including the sentence imposed and the nature of the offense under federal law. 

Immigration Consequences of Aggravated Felonies


1. Deportation: Non-citizens convicted of an aggravated felony are generally subject to expedited removal proceedings. The offense's nature, combined with a sentence of one year or more, virtually eliminates eligibility for relief.
   
2. Ineligibility for Relief: Convicted individuals lose eligibility for asylum, cancellation of removal, and adjustment of status. Under INA § 208(b)(2), even those with compelling humanitarian reasons for asylum may be disqualified.

3. Permanent Bar to Reentry: Aggravated felonies result in a permanent bar to reentry for deported individuals. Even if they leave the U.S. voluntarily, the aggravated felony conviction bars future immigration applications.

Potential Legal Defenses and Relief

1. Post-Conviction Relief: In California, some non-citizens may benefit from post-conviction relief efforts. Under *People v. Kim (2009)* and *People v. Superior Court (Giron)*, defendants may seek to vacate or modify their criminal convictions to avoid aggravated felony classification. This strategy is often used for older cases where ineffective counsel or other factors might have played a role.

2. Reclassification and Downward Sentencing: Defense attorneys in California may negotiate for a reduction in charges or sentencing to avoid triggering the aggravated felony designation under federal law. This is critical for crimes such as theft or drug offenses that hinge on the length of the sentence.

3. Penal Code 1473.7. Allows non-citizens to vacate their criminal convictions if they can show that the conviction was legally invalid due to not understanding the immigration consequences of their plea. This law is particularly helpful for non-citizens who were inadequately advised about the risk of deportation, denial of legal status, or inadmissibility. Successful petitions under PC 1473.7 can remove the conviction from their record, potentially avoiding harsh immigration consequences like deportation.

Facing criminal charges can have life-altering consequences for non-citizens in Rancho Cucamonga, CA. Convictions for aggravated felonies, such as drug trafficking, theft, or domestic violence, could lead to immediate deportation and a permanent bar from reentry. Our experienced Rancho Cucamonga immigration and criminal defense attorney team specializes in defending non-citizens from the harsh consequences of criminal convictions. We have successfully helped clients reduce charges, vacate prior convictions, and navigate both state and federal law to avoid deportation. Call our office today to schedule a consultation and protect your future!

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About the Author

Arturo Angel Burga

FOUNDER Arturo Angel Burga Mr. Burga began his solo practice in 2011. Since then he has grown to become a top-rated lawyer in his field. He was ranked as a Top Lawyer by Inland Empire Magazine and most recently was an invited as a speaker at the American Immigration Lawyers Association (AILA) A...

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