INA §237(a)(2)(A)(iii): Aggravated Felony Deportability

INA §237(a)(2)(A)(iii) provides that a noncitizen who is convicted of an aggravated felony at any time after admission is deportable. Unlike the single crime involving moral turpitude ground, this provision does not contain a five year offense period. It also does not contain one universal sentence requirement. The applicable requirements depend on the particular aggravated felony category DHS invokes.

The first task is therefore to identify the exact subsection of INA §101(a)(43), 8 U.S.C. §1101(a)(43), that allegedly covers the conviction. A Notice to Appear that simply describes a crime as serious does not replace the statutory analysis. DHS must tie the conviction to one or more of the aggravated felony definitions enacted by Congress.

Whether state law labels an offense a felony, misdemeanor, gross misdemeanor, or another classification does not decide whether it is an aggravated felony for immigration purposes. Congress created a federal immigration definition containing numerous categories in INA §101(a)(43). Some categories require a particular sentence, some require a monetary amount, some refer to specified federal statutes, and others use generic offense definitions developed through federal precedent.

A state misdemeanor can potentially satisfy an aggravated felony definition if all of the federal requirements are met. Conversely, a state felony does not automatically qualify. The analysis must compare the conviction with the specific federal category charged by DHS.

The statutory definition runs from subparagraphs (A) through (U). It includes categories involving murder, rape, sexual abuse of a minor, illicit trafficking in controlled substances, certain firearms offenses, money laundering, crimes of violence, theft and burglary, ransom, child pornography, racketeering and gambling, prostitution businesses, slavery and trafficking, national security offenses, fraud and deceit, tax evasion, alien smuggling, illegal reentry after certain removals, passport and document offenses, failure to appear, obstruction of justice, perjury, witness bribery, and attempt or conspiracy to commit listed offenses.

Not every category uses the same test. A useful aggravated felony memorandum identifies the specific lettered subsection and then analyzes only the elements and additional circumstances required by that subsection.

Before deciding whether an offense is an aggravated felony, confirm that the disposition qualifies as a conviction under INA §101(a)(48)(A). A formal judgment of guilt qualifies, and certain deferred adjudications can also qualify when the federal requirements are satisfied. State terminology does not control the federal immigration definition.

Obtain the certified judgment, charging document, plea record, sentencing order, and any later court orders. Juvenile adjudications and some diversion programs may require separate analysis. A rap sheet or background report should not substitute for the actual criminal court record.

The Supreme Court and immigration authorities generally use the categorical approach for many aggravated felony categories. The adjudicator compares the elements of the statute of conviction with the federal aggravated felony definition rather than deciding the case from police allegations about what happened in the real world.

Matter of Reyes, 28 I&N Dec. 52 (A.G. 2020), explains that DHS generally must establish that the elements of the offense map onto an aggravated felony definition. Moncrieffe v. Holder likewise emphasizes that the inquiry ordinarily examines what the state conviction necessarily involved rather than retrying the underlying criminal conduct in Immigration Court.

If a statute lists alternative elements defining different crimes, the statute may be divisible. The modified categorical approach can then permit review of a limited set of conviction documents to identify which statutory alternative formed the basis for conviction. The purpose is to identify the offense of conviction, not to conduct a factual trial about every allegation in the police file.

Relevant documents can include the charging instrument, plea agreement, plea colloquy, judgment, jury instructions, and verdict form where legally appropriate. Whether a statute lists elements or merely alternative means can determine whether this additional review is permitted.

In Matter of Reyes, the Attorney General held that when all means of committing the offense necessarily correspond to one or more offenses listed in §101(a)(43), the conviction can qualify as an aggravated felony even if it is uncertain which of two listed aggravated felony categories describes the precise means used. The case involved the relationship between aggravated felony theft and fraud.

Reyes does not eliminate the categorical inquiry. It instead addresses a particular circumstance in which every means covered by the statute falls within an aggravated felony definition even though different means may correspond to different listed categories. The exact statute of conviction still must be analyzed.

Several aggravated felony categories apply only when the required term of imprisonment is at least one year. Examples include certain crimes of violence under §101(a)(43)(F), theft and burglary offenses under §101(a)(43)(G), and obstruction, perjury, subornation of perjury, or witness bribery under §101(a)(43)(S).

INA §101(a)(48)(B) defines a term of imprisonment or sentence with reference to the period of incarceration or confinement ordered by a court regardless of suspension of the imposition or execution of that imprisonment or sentence. The actual time spent in custody therefore is not necessarily the controlling number. The judgment and sentencing orders must be reviewed carefully.

INA §101(a)(43)(G) includes a theft offense, including receipt of stolen property, or a burglary offense for which the term of imprisonment is at least one year. Both parts matter. A theft conviction with a shorter qualifying sentence may fail this particular aggravated felony definition even when the conduct could have other immigration consequences.

The generic federal definition also matters. Matter of Garcia-Madruga explains the distinction between theft and fraud and describes theft as generally involving a taking or exercise of control over property without consent with the required intent to deprive the owner of ownership rights or benefits. State labels alone do not resolve the categorical comparison.

INA §101(a)(43)(M)(i) includes an offense involving fraud or deceit in which the loss to the victim or victims exceeds $10,000. The Supreme Court in Nijhawan v. Holder held that the monetary loss requirement is circumstance specific rather than an element that must appear in every version of the criminal statute.

The government must still connect the claimed loss to the offense of conviction. Relevant materials can include the plea agreement, sentencing findings, restitution order, stipulations, presentence materials where legally appropriate, and other reliable evidence tied to the convicted conduct. The amount alleged in an indictment is not automatically the legally established loss.

INA §101(a)(43)(D) covers specified money laundering offenses when the amount of the funds exceeded $10,000. Matter of Dominguez Reyes, 28 I&N Dec. 878 (BIA 2024), holds that the circumstance specific approach applies to the requirement that the amount of funds exceeded $10,000.

This is another example of why aggravated felony analysis cannot use one universal categorical formula for every phrase in §101(a)(43). The elements of the underlying offense may be examined categorically while Congress can separately direct an inquiry into a circumstance such as the monetary amount involved in the particular offense.

INA §101(a)(43)(B) includes illicit trafficking in a controlled substance, including a drug trafficking crime as defined in 18 U.S.C. §924(c). Drug convictions therefore require comparison with the applicable federal controlled substance and trafficking framework rather than an assumption that every state drug felony is an aggravated felony.

Moncrieffe v. Holder illustrates the importance of the categorical approach. The Supreme Court held that the Georgia marijuana offense before it did not categorically establish an aggravated felony because the statute covered conduct that federal law could punish only as a misdemeanor, including distribution of a small amount of marijuana without remuneration.

INA §101(a)(43)(F) includes a crime of violence as defined in 18 U.S.C. §16 for which the term of imprisonment is at least one year. In Sessions v. Dimaya, the Supreme Court held the residual definition in 18 U.S.C. §16(b) unconstitutionally vague as incorporated into the immigration statute.

Current crime of violence analysis therefore requires careful attention to the remaining statutory framework, including 18 U.S.C. §16(a), the elements of the state or federal offense, the governing circuit's precedent, and the sentence imposed. A crime that sounds violent in ordinary language is not automatically an aggravated felony crime of violence.

INA §101(a)(43)(S) includes an offense relating to obstruction of justice, perjury, subornation of perjury, or bribery of a witness when the required term of imprisonment is at least one year. In Pugin v. Garland, the Supreme Court held that an obstruction offense need not require a pending or ongoing investigation or judicial proceeding.

In Matter of Valenzuela Gallardo, 29 I&N Dec. 536 (BIA 2026), the Board further stated that an offense relating to obstruction of justice is a specific intent offense involving an affirmative and intentional attempt to interfere with the process of justice and law. The Board held that California Penal Code §32 accessory to a felony categorically qualifies when the one-year sentence requirement is satisfied.

These decisions do not turn every offense involving concealment, false statements, or interference into obstruction. The categorical analysis still requires comparison of the conviction's elements with the federal definition, and §101(a)(43)(S) separately requires the specified term of imprisonment.

INA §101(a)(43)(A) lists murder, rape, and sexual abuse of a minor. These categories do not use the one year sentence threshold found in several other aggravated felony provisions. The legal question instead centers on whether the statute of conviction matches the applicable federal generic definition.

Sex offense terminology varies substantially among the states. Age requirements, age differences, the nature of the prohibited conduct, consent, and mental state can affect the categorical analysis. Counsel should research controlling Supreme Court, BIA, and federal circuit precedent involving the precise criminal statute rather than relying on the offense title.

The aggravated felony definition includes specified alien smuggling offenses and certain passport, document fraud, and false document offenses, subject to statutory limitations and exceptions. These provisions are separate from the ordinary deportability grounds for alien smuggling or document fraud.

A criminal conviction should therefore be analyzed under the specific §101(a)(43) category even if the same historical conduct could also support another immigration charge. The criminal aggravated felony analysis and any noncriminal deportability ground can have different elements, exceptions, and consequences.

INA §101(a)(43)(U) includes an attempt or conspiracy to commit an offense described elsewhere in the aggravated felony definition. A conviction therefore does not escape aggravated felony analysis merely because the substantive offense was not completed.

The underlying target offense still matters. The government must identify the aggravated felony that was allegedly attempted or conspired to be committed and establish the required legal relationship between the conviction and that listed offense. Monetary, sentence, or other statutory requirements applicable to the relevant category must be analyzed under governing law.

The final language of §101(a)(43) states that the aggravated felony definition applies to offenses described in the paragraph whether they violate federal or state law. It also addresses qualifying offenses under foreign law where the term of imprisonment was completed within the previous fifteen years.

Foreign convictions therefore require additional analysis of the statutory wording, the foreign offense, the sentence, and the date imprisonment was completed. Counsel should obtain the complete foreign judgment and a certified translation rather than attempting to classify the conviction from a police certificate alone.

The statutory definition states that, notwithstanding other provisions of law, the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996. A defense should therefore not assume that an older conviction cannot be an aggravated felony merely because it predates the modern removal proceedings.

Historical cases can still raise separate retroactivity, eligibility, reliance, former relief, and procedural questions. Those issues should be researched independently. The age of the conviction by itself is not a substitute for analyzing the text of §101(a)(43) and the law governing the case.

A later criminal court order can change the immigration analysis, but not every amendment, vacatur, sentence modification, or rehabilitative disposition eliminates a conviction or aggravated felony consequence under federal immigration law. The reason and legal basis for the criminal court action can matter.

Obtain the motion, prosecutor's response, transcript, order, statutory authority, and any findings explaining why relief was granted. Immigration counsel should coordinate with criminal counsel before a post conviction motion is filed so the requested relief addresses the actual aggravated felony issue rather than changing a feature that is irrelevant under federal law.

In removal proceedings involving an admitted respondent, DHS generally bears the burden of proving deportability by clear and convincing evidence. That includes establishing that the criminal disposition is a qualifying conviction and that it satisfies the aggravated felony definition relied on in the charge.

The respondent can separately bear the burden of proving eligibility for relief. An ambiguity in the criminal record can therefore have different consequences depending on whether the court is deciding DHS's deportability charge or the respondent's eligibility for a particular remedy. The brief should identify the burden separately for each issue.

INA §240A(a)(3) makes a lawful permanent resident convicted of an aggravated felony ineligible for cancellation of removal under §240A(a). This makes the classification question important even when DHS has another possible ground of removability. Defeating the aggravated felony allegation can preserve a form of relief that otherwise would be statutorily unavailable.

Cancellation eligibility also has additional residence and continuous residence requirements. The defense should therefore prepare both analyses: first whether the conviction actually is an aggravated felony, and second whether the respondent satisfies all remaining requirements for relief if the aggravated felony classification is defeated.

Aggravated felony convictions can affect asylum and withholding of removal through the particularly serious crime provisions. For asylum, the INA treats an aggravated felony conviction as a particularly serious crime. Withholding has a separate statutory framework, including a rule concerning aggravated felony sentences with an aggregate term of imprisonment of at least five years and authority to find other offenses particularly serious.

These protection consequences should be analyzed separately from the initial aggravated felony deportability charge. A person may also have Convention Against Torture issues that require their own statutory and regulatory analysis. Do not assume that one criminal classification produces the same result for every form of protection.

DHS can allege that one conviction fits more than one aggravated felony category. Create a chart listing the criminal statute, subsection, elements, sentence, loss amount where relevant, controlled substance issue where relevant, each §101(a)(43) subsection alleged, and the authority governing the comparison.

The chart should distinguish categorical elements from circumstance specific facts. For example, fraud loss and the money laundering amount can require a circumstance specific inquiry, while many generic offense definitions are examined categorically. Keeping those methods separate prevents the government's factual allegations from substituting for the legal test Congress adopted.

Obtain the charging instrument, plea agreement, plea transcript, judgment, verdict where applicable, jury instructions where relevant, sentencing order, restitution order, presentence materials where legally necessary, probation records, and all post conviction orders. Also obtain the criminal statute and sentencing provisions in effect at the relevant time.

For circumstance specific issues, collect the reliable records that establish or dispute the required amount or other statutory circumstance. For categorical issues, identify which documents can lawfully be used under the modified categorical approach. The defense file should preserve that distinction.

Supreme Court and BIA precedent provide the national framework, but federal circuit decisions frequently determine whether a particular state statute is a crime of violence, theft offense, burglary offense, drug trafficking offense, obstruction offense, sexual abuse offense, or another aggravated felony. Circuit law can also control divisibility and realistic probability issues.

Search using the exact statute number and subsection. Confirm that the version of the criminal statute addressed by the precedent matches the version involved in the respondent's conviction. Statutes are amended, and an older case interpreting materially different elements may not resolve the current conviction.

First identify every aggravated felony subsection alleged by DHS. Obtain the certified criminal record and confirm the federal immigration conviction. Determine whether the relevant category uses the categorical approach, a modified categorical inquiry, a circumstance specific requirement, or a combination of those methods. Then test every sentence, monetary, controlled substance, or other statutory threshold.

Next research the precise criminal statute in the governing circuit, review post conviction options, and determine whether the aggravated felony classification creates bars to cancellation, asylum, withholding, adjustment, waivers, or other relief. Only after those legal issues are mapped should the case move to a full discretionary and humanitarian presentation.