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Prizant Law
Immigration Lawyer, Queens NY
Immigration Lawyer, Queens NY

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Prizant Law PC is listed among top 19 Immigration Law Firms in New York

Aggravated Felonies: An Overview

One of the most common questions we often receive during in person and telephonic consultations in our immigration practice is whether an aggravated felony may decrease a person’s chances to legalize their status in the United States. The harsh reality is that the immigration options for non-citizen aliens convicted of an “aggravated felony” are severely limited, and in most situations, the immigration laws of the United States subject these individuals to the harshest deportation consequences.

“Aggravated felony” is a term of art used to describe a category of offenses carrying particularly harsh immigration consequences for noncitizens convicted of such crimes. Regardless of their immigration status, non-citizens who have been convicted of an “aggravated felony” are prohibited from receiving most forms of relief that would spare them from deportation, including asylum, and from being readmitted to the United States at any time in the future.

Despite what the ominous-sounding name may suggest, an “aggravated felony” does not require the crime to be “aggravated” or a “felony” to qualify. Instead, an “aggravated felony” is simply an offense that Congress sees fit to label as such, and today includes many nonviolent and seemingly minor offenses.

This fact sheet provides an overview of “aggravated felonies” under federal immigration law and the immigration consequences of being convicted of an “aggravated felony.”

What Makes A Crime An “Aggravated Felony”?
An offense need not be “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” for purposes of federal immigration law. Instead, an “aggravated felony” is any crime that Congress decides to label as such. As two prominent immigration judges have noted, numerous “non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws.”

As initially enacted in 1988, the term “aggravated felony” referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. Congress has since expanded the definition of “aggravated felony” on numerous occasions, but has never removed a crime from the list. Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. Even offenses that sound serious, such as “sexual abuse of a minor,” can encompass conduct that most states classify as misdemeanors or do not criminalize at all, such as consensual intercourse between a 21-year-old and a 17-year-old.

What If The Conviction Occurred Before The Crime Was Labeled An “Aggravated Felony”?
In most federal courts, a conviction for any offense listed as an “aggravated felony” is grounds for deportation, even if the crime was not considered an “aggravated felony” at the time of conviction. In other words, whenever Congress adds a new offense to the list of “aggravated felonies” in the Immigration and Nationality Act (INA), lawfully present non-citizens who have previously been convicted of such crimes become immediately deportable. As a result, any addition to the list of “aggravated felonies” will automatically apply retroactively to prior convictions.

Are “Aggravated Felonies” The Only Crimes For Which An Immigrant Can Be Deported?
No. An “aggravated felony” is one—but not the only—basis to deport immigrants convicted of a criminal offense. Removal proceedings may also be initiated against immigrants convicted of one or more “crimes involving moral turpitude,” a broad category of offenses that includes, but is not limited to, most crimes that qualify as an “aggravated felony.” Noncitizens convicted of crimes involving moral turpitude may be subject to deportation, but do not face the additional consequences associated with a conviction for an “aggravated felony.” The immigration laws also permit deportation for convictions of various standalone offenses.

Thus, whether a non-citizen is subject to deportation for a crime is not determined by whether the crime is labeled an “aggravated felony.” Instead, the primary impact of the “aggravated felony” classification relates to the increased immigration penalties attached to the label, including the inability to apply for most forms of relief from removal.

What Are The Potential Consequences Of Being Convicted Of An “Aggravated Felony”?
Deportation Without A Removal Hearing

Certain noncitizens convicted of an “aggravated felony” are provided fewer legal protections than other immigrants. For example, any immigrant convicted of an “aggravated felony” who is not a lawful permanent resident (LPR) may be administratively deported from the United States without a formal hearing before an Immigration Judge. Immigrants placed in such proceedings are not eligible for asylum or any other form of discretionary relief. Immigrants found deportable in this manner may not appeal to the Board of Immigration Appeals (BIA) and can be physically removed two weeks after entry of the order.

Mandatory Unreviewable Detention Following Release From Criminal Custody

Federal immigration authorities are required to detain any immigrant convicted of an “aggravated felony” upon his or her release from criminal custody. To obtain bond from an immigration judge, LPRs who are detained following a conviction of a potential “aggravated felony” must demonstrate with substantial likelihood that the crime in question does not qualify as an “aggravated felony.”

Ineligibility For Asylum

Any immigrant convicted of an “aggravated felony” is ineligible for asylum. Asylum is a form of immigration relief available to immigrants who suffered or have a well-founded fear of persecution in their country of nationality or last habitual residence. Immigrants convicted of an “aggravated felony” may also be ineligible for “withholding of removal,” a similar form of relief for noncitizens whose life or freedom would be threatened in the country of deportation.

Ineligibility For Cancellation Of Removal

Any immigrant convicted of an “aggravated felony” is ineligible for cancellation of removal (“cancellation”). Cancellation is a form of relief allowing immigration judges to permit otherwise deportable immigrants to remain in the United States. The bar to cancellation for immigrants convicted of an “aggravated felony” applies regardless of whether their removal would cause “exceptional and extremely unusual hardship” to an immediate family member who is a U.S. citizen or LPR.

Ineligibility For Certain Waivers Of Inadmissibility

Certain LPRs may not obtain a waiver of inadmissibility under Section 212(h) of the INA if they were convicted of an “aggravated felony.” A waiver of inadmissibility is a means of excusing immigrants for past misconduct that makes them ineligible for admission to the United States. Waivers under Section 212(h) are available to prospective LPRs whose removal from the United States would cause “extreme hardship” to a qualifying U.S. citizen or LPR.

Ineligibility For Voluntary Departure

An immigrant convicted of an “aggravated felony” is ineligible for voluntary departure. Voluntary departure is a discretionary form of relief allowing otherwise deportable immigrants to leave the country at their own expense in place of formal deportation under an order of removal.

Permanent Inadmissibility Following Departure From The United States

An immigrant removed from the United States after being convicted of an “aggravated felony” (or who leaves while an order of removal is outstanding) is permanently inadmissible. To lawfully reenter the United States, such an immigrant must receive a special waiver from the Department of Homeland Security (which is very rare), in addition to meeting all other grounds of admissibility.

Enhanced Penalties For Illegally Reentering The United States

An immigrant who is removed from the United States following a conviction for an “aggravated felony,” and who subsequently reenters the country illegally, may be imprisoned for up to 20 years rather than two years.

In the words of the Supreme Court, immigrants convicted of an “aggravated felony” face the “harshest deportation consequences.” As Congress ponders proposals to include even more crimes under the definition of “aggravated felony,” it must consider the extremely severe consequences that will result. The immigration laws include numerous provisions to ensure that criminals are not allowed to remain in the United States, yet also recognize that exceptions should be made in particularly compelling cases, especially when an immigrant’s removal will create hardship for U.S. citizens. Once a crime is labeled an “aggravated felony,” however, deportation is all but assured and individualized determinations are rarely possible to make.

For a free first time legal consultation please call Prizant Law at 718-840-0871

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Reminder: USCIS Fee Increase Effective December 23, 2016

Any employer anticipating submission of an immigration application or petition should consider filing prior to December 23, 2016, to avoid higher USCIS filing fees.

On October 24, 2016, USCIS announced a final rule that adjusts the required fees for most immigration applications and petitions. This will be the first increase in six years and, according to USCIS, the increase is needed in order to recoup higher costs associated with customer service, case processing, fraud detection, and national security. USCIS is almost entirely funded by application and petition fees.

Another reminder: most nonimmigrant extension requests can be submitted up to 180 days prior to the expiration of the foreign national employee's current status. Employers may want to consider filing these extension requests prior to December 23, 2016, if the individual is eligible.

Examples of the increased fees:

from $325 to $460 for Form I-129 (i.e., nonimmigrant petition filings
seeking visa status such as H-1B, L-1, TN),
from $580 to $700 for Form I-140 (i.e., immigrant petition for an
alien worker), and
from $1070 to $1,225 (including required biometrics fee) for Form
I-485 (i.e., application to register permanent residence or adjust status).
Immigration applications or petitions postmarked or filed on or after December 23, 2016, without the new increased fees will be rejected. To avoid delay because of insufficient filing fees, new applications or petitions should be sent in well in advance of the scheduled fee increase.

For a free first time legal consultation please call Prizant Law at 718-407-0871

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here are two steps to applying for a green card on your own, without relying on your abusive spouse or parent, as allowed under the Violence Against Women Act (VAWA). First, you must file Form I-360 and supporting evidence with U.S. Citizenship and Immigration Services (USCIS). If your self-petition is approved, the next step is to file an application for a U.S. green card (lawful permanent residence).

Filling Out Form I-360

In order to apply for a green card under VAWA, you must first fill out USCIS Form I-360
<> and submit it to USCIS. You will also need to send documentary evidence that you meet all of the eligibility requirements. The usual filing fee is not required for self-petitioning abused spouses, parents, and children.

What To Include With Form I-360

In addition to the form, you will need to include evidence that you meet all the requirements of VAWA. This evidence should include such items as:

a declaration describing your relationship, the abuse you suffered,
your good moral character, and anything else relevant to proving your
other evidence of the abuse, such as police or hospital records or
court-issued protective orders
police clearance records showing your criminal record, or lack
thereof, and other evidence that you are a person of "good moral
character"—you can obtain the certificates from the police department of
any town you have lived in during the last three years for more than six
proof that the abuser is a U.S. citizen or green card proof that you are the abuser's spouse, child, or parent (marriage or
birth certificate)
proof that you lived with the abuser, and
proof that you currently live in the U.S.

It is also helpful to include a cover letter on top of the application describing how you meet each requirement and the evidence you have submitted to prove it.

What Happens After You Submit The I-360 Self-Petition?

After USCIS receives your I-360 petition, it will send a receipt notice to the address you have provided on the form. USCIS may then review the self-petition to see whether it can be approved if everything you stated within is true. This is called a "prima facie determination." If USCIS decides that your self-petition can be approved if it is true, it will send you a "Prima Facie Approval" letter. This does not mean you are granted anything yet. It does, however, mean that you can qualify for some types of public assistance. After sending you this Prima Facie Approval letter, USCIS will take more time to look carefully at your self-petition.

If USCIS needs more evidence to determine whether it should approve your I-360, it will send you a letter asking for it. You will have 60 days to give USCIS the new evidence or an explanation as to why you cannot do so.

If USCIS does not believe you qualify as an abused spouse, parent, or child, it may send you a "Notice of Intent to Deny." This will state the reasons why USCIS believes you do not qualify, and it will give you additional time to send evidence that will change its mind. If you do not do so, USCIS will deny the self-petition. USCIS can also deny your I-360 without sending you a Notice of Intent to Deny.

If USCIS believes it has enough evidence showing that you are an abused spouse, parent, or child, it will send you an approval letter.

After Your I-360 Is Approved

After USCIS approves your I-360, you can begin to prepare your application to adjust your status (receive a green card). The main form for this is USCIS Form I-485 <>.

If the abuser is a U.S. citizen, then you are eligible to apply as soon as your I-360 has been approved.

If the abuser is a permanent resident (green card holder), however, you will have to wait for a visa to become available in order to apply for your green card. However, with an approved I-360, you can remain lawfully in the U.S. and can apply for work authorization while you wait. Your place on the waiting list is based on your "priority date," which is the date that your I-360 was approved. However, if the abuser previously filed an I-130 visa petition for you, you can use that priority date instead.

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What Is The Stokes Interview?
When a husband and wife did not convince an immigration officer that their marriage was real at their first green card interview (adjustment of status interview) they usually get a second chance. This second chance is known as the Stokes interview (also Known as the marriage fraud interview). The name Stokes Interview comes from the names of two of the plaintiffs in a class action lawsuit against the government that created the framework for the interview. At the Stokes Interview the immigration officer is there to determine if the marriage is bona fide or fraudulent.

What Happens At The Stokes Interview?
The immigration officer will bring the couple in to his or her office and may discuss why they believe the first interview didn't go well. The immigration officer will go over the procedures of the interview and then will separate the husband and the wife from each other. Once separated the immigration officer will ask very personal and invasive questions to one of the married couple and then the other. The interview will be recorded and the statements will be compared for discrepancies against each other. The immigration officer will then bring the couple in together and give them a chance to explain any discrepancies. It is the couple's job to explain the details of their life and convince the immigration officer of their genuine relationship. If the couple's answers matched and convinced the immigration officer of their relationship then their case will be approved. However, if the immigration officer is not convinced and has reasons to believe the marriage was created for the purpose of getting a green card, the immigration officer will deny the case.

How Long Does The Stokes Interview Take?
The Stokes interview can take several hours as the immigration officer will question each of the couple separately in detail and will also question the couple together. It's best to answer the questions honestly and as openly as you can.

What If You Don't Remember Some Details During The Stokes Interview?
If you don't remember some detail asked of you it's better to say you don't remember than to try to make up an answer. If you tell the truth you cannot get caught up in a lie.

How To Prepare For The Stokes Interview?
The couple must bring all their original documentation such as their marriage certificate, birth certificates, passports, visa, entry records. The couple must also bring all their supporting evidence that shows that they are a real couple, for example the couples joint bank account statements, joint insurance statements, proof of joint assets, proof of joint liabilities, joint bills and separate bills going to the same residence, joint residential leases, photo albums, affidavits from friends and colleagues that have knowledge of the relationship and any other proof of your bona fide marriage. Bring the above evidence that spans the relationship together and it's a good idea to have the evidence organized and easily available to give to the immigration officer. Don't forget to also have an extra copy of all the evidence you submit to keep for your records as you may need it again.

Before you go to the Stokes interview pay attention to the little details of your household, you and your spouse's daily routines and discuss with your spouse memories of your relationship from the time it started until the present. It may be a good idea to add details that only you and your spouse would know when answering the immigration officer's questions, as this may show that you are a genuine couple. Stay calm and answer the immigration officer as openly and honestly as you can. Good Luck!
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