What is an Aggravated Felony?

An aggravated felony, in the context of U.S. immigration law, refers to a broad category of crimes that can have severe implications for non-citizens. This includes crimes such as murder, sexual abuse of a minor, drug trafficking, and many others. The term was significantly expanded by Congress in the 1980s and 1990s to include numerous offenses that might not traditionally be considered felonies. This expansion has made it increasingly difficult for immigrants convicted of such crimes to avoid deportation and obtain relief from removal.

Impact of an Aggravated Felony on Immigration Status

Deportation

One of the most immediate and grave consequences of being convicted of an aggravated felony is deportation. It’s almost automatic and leaves very little room for appeal or other forms of relief.

Inability to Obtain Other Forms of Relief

Those convicted of aggravated felonies are generally ineligible for various forms of relief, including asylum, cancellation of removal, and voluntary departure. This can severely limit their options and potential to stay in the U.S.

Types of Waivers Available

Section 212(h) Waivers

This type of waiver allows some immigrants who have been convicted of certain crimes to gain admission to the U.S. despite their convictions. However, it’s important to note that Section 212(h) waivers are not available for those convicted of murder or drug trafficking.

Factors Considered

• The nature and severity of the crime
• The amount of time that has passed since the conviction
• The applicant’s ties to the U.S.

Other Waivers

Other forms of waivers may be available depending on the specifics of the case, such as waivers for certain grounds of inadmissibility. Each type of waiver has its own requirements and limitations, so consulting with an experienced immigration attorney is essential.

Requirements for Obtaining a Waiver

Qualifying Relationships

Many waivers require that the applicant have a qualifying relationship with a U.S. citizen or lawful permanent resident, such as a spouse, parent, or child. These relationships often form the basis for demonstrating extreme hardship, a key criterion for many waivers.

Evidence of Rehabilitation

Applicants must often provide evidence that they have rehabilitated themselves since their conviction. This can include letters of recommendation, proof of employment, and completion of educational or vocational programs.

Demonstrating Extreme Hardship

To qualify for many waivers, the applicant must show that their removal would cause extreme hardship to their U.S. citizen or lawful permanent resident family members. This can be a very high bar to meet and often requires extensive documentation and legal expertise.

Legal Process for Obtaining a Waiver

Filing the Application

The first step in obtaining a waiver is to file the appropriate application with the U.S. Citizenship and Immigration Services (USCIS). This usually involves completing forms, paying fees, and providing supporting documentation.

Attending the Interview

Most waiver applications will require the applicant to attend an interview with a USCIS officer. This interview can be a critical opportunity to explain the circumstances of the conviction and the reasons why a waiver should be granted.

Possible Outcomes

If the waiver application is approved, the applicant may regain eligibility for the immigration benefit they were seeking, such as adjustment of status or re-entry to the U.S. If the application is denied, the applicant may have options for appeal or reconsideration, but these are often limited.

Success Stories

Case 1: From Despair to Victory

One notable success story involves a young man who was convicted of an aggravated felony as a teenager. Over the years, he turned his life around, gaining stable employment and becoming an active member of his community. With the help of a skilled immigration attorney, he was able to successfully obtain a waiver and avoid deportation.

Lessons Learned

This case highlights the importance of rehabilitation and community support in successfully obtaining a waiver. It also underscores the value of having an experienced attorney to navigate the complex legal process.

Case 2: A Family United

In another example, a mother of three U.S. citizen children faced deportation after an aggravated felony conviction. With the help of her attorney, she was able to demonstrate the extreme hardship her deportation would cause her children. Her waiver application was granted, allowing her to stay with her family in the U.S.

Lessons Learned

This story emphasizes the critical role that family ties and hardship considerations play in obtaining waivers. It also illustrates the profound impact that a waiver can have on keeping families together.

Common Mistakes to Avoid

Incomplete Applications

One of the most common mistakes in the waiver application process is submitting incomplete or inaccurate applications. This can result in delays or outright denials.

Lack of Documentation

Failing to provide sufficient documentation to support the waiver request can be a fatal flaw. Applicants should ensure they gather and submit all relevant evidence, such as proof of rehabilitation and evidence of extreme hardship.

Not Seeking Professional Help

Attempting to navigate the waiver process without professional assistance is a major risk. An experienced immigration attorney can provide invaluable guidance and increase the chances of a successful outcome.

Frequently Asked Questions

What is an aggravated felony?

An aggravated felony is a severe category of crime that carries significant immigration consequences, including deportation and ineligibility for certain forms of relief.

Can I get a waiver for an aggravated felony?

While difficult, it is possible to obtain a waiver for certain aggravated felonies. However, the eligibility and process depend on the specifics of the case and the type of waiver being sought.

What types of crimes are considered aggravated felonies?

The list includes serious crimes such as murder, rape, sexual abuse of a minor, and major drug trafficking offenses, but also encompasses many other crimes.

How can an attorney help with my waiver application?

An immigration attorney can help by preparing and filing the application, gathering supporting evidence, and representing you in interviews or appeals.

What is extreme hardship?

Extreme hardship refers to the severe and unusual difficulties that a qualifying relative would face if you were deported. This can include financial, emotional, medical, or other significant impacts.

Will my criminal record be expunged if I get a waiver?

No, a waiver does not expunge your criminal record. It only allows you to overcome certain immigration barriers associated with your conviction.

How long does the waiver process take?

The timeline can vary widely, from several months to over a year, depending on the complexity of the case and the backlog of the immigration office handling the application.

Can my waiver application be denied?

Yes, waiver applications can be denied. Denials can occur due to insufficient evidence, failure to meet eligibility criteria, or other reasons. In some cases, there may be options for appeal.

What happens if my waiver application is denied?

If your application is denied, you may have the option to appeal the decision or file a motion to reopen or reconsider. Consulting with an attorney on the best course of action is essential.

Can I apply for a waiver if I am already in deportation proceedings?

Yes, it is possible to apply for a waiver while in deportation proceedings. However, the process can be more complex, and it is crucial to seek legal assistance.