Aggravated Felony for Immigration

Aggravated Felony for Immigration

A new precedent decision makes clear what will be deemed an aggravated felony for immigration purposes.

Matter of Onesta Reyes was decided by the Attorney General on July 30, 2020. In this case, the issue was whether an alien who had been convicted of a criminal offense necessarily was convicted of an “aggravated felony” for immigration purposes, where all of the elements of the statue of conviction correspond to an aggravated-felony theft offense or to an aggravated-felony fraud offense.

The Immigration and Nationality Act makes removable any alien who is convicted of an aggravated felony after admission into the United States. It defines aggravated felony to include many generic offenses, such as murder, theft, and burglary. If an alien’s offense corresponds to one of the generic offenses, then the alien is removable.

The Supreme Court has held that the categorical approach should be used to determine if an offense is an aggravated felony. The categorical approach focuses on the elements of the statute of conviction to see if they categorically map on to the elements of an aggravated felony charged in the immigration proceeding. Under this approach, an alien is removable based on a prior conviction only if the underlying offense necessarily involved facts equating to commission of an aggravated felony.

In Matter of Onesta Reyes, the respondent was convicted grand larceny in the second degree in violation of New York Penal Law § 155.40(1). The respondent (citizen of Italy) pled guilty to the NY law and was sentenced to 1-3 years in prison. Thereafter, the Department of Homeland Security (“DHS”) initiated a removal proceeding against the respondent on account of her conviction, however DHS was having trouble determining if the conviction qualified as a theft offense or a fraud offense. Based on this ambiguity, the respondent took the position that she is not removable because her offense of conviction does not categorically map on to either aggravated-felony theft or aggravated-felony fraud, taken individually.

The Attorney General reviewed the facts and ultimately found that the respondent’s conviction for grand larceny is necessarily one for an aggravated felony. It was explained that an alien’s conviction is for an aggravated felony where all of the elements of the statue of conviction, and thus all of the means of committing the offense, correspond to at least one of the aggravated-felony offense specified in section 1010(a)(43). Where it is known to a practical certainty that an alien has been convicted of at least one such offense, the conviction qualifies, even if the categorical approach does not permit a conclusive determination about which one (here, theft or fraud).

A criminal conviction can lead to deportation or can stop a person from entering the United States in the first place. If you have been convicted of a crime (aggravated felony or otherwise), you most likely need a criminal waiver of inadmissibility before re-entering the US. If you require assistance applying for a criminal waiver of inadmissibility, contact Silver Immigration today for a free consult. We can help guide your through the e-safe application process.