Immigration Law Update: Removal based Aggravated Felony

Immigration Law Update: In a decision which will impact consequences of criminal convictions and limit immigration benefits, on May 19, 2016, the Supreme Court decided in Luna Torres v. Lynch that certain state, local, and federal offenses are “aggravated felonies”. Under the Immigration and Naturalization Act (INA), an alien (non-citizen) convicted of an aggravated felony can be subject to removal (deportation).

George Luna Torres had been a lawful permanent resident (green card holder) in the United States since he was a child. In 1999, he was convicted of third degree arson in New York State, and was sentenced to one day in jail and five years of probation. Some seven years later, immigration officials discovered the conviction and placed him in removal proceedings. He applied for a benefit known as “cancellation of removal” which allows an immigration judge some discretion to consider mitigating factors and cancel the deportation proceedings. The judge found that because his offense was an “aggravated felony” he was unable to grant cancellation of removal, regardless of any mitigating factors on behalf of Mr. Luna Torres.

The court’s decision hinged on whether the third degree arson was described in the list of aggravated felonies- which includes enumerated federal offenses or state, local or foreign offenses that are “described” in the list of federal offenses. Torres argued that his third degree arson was not “described” in that list because it lacked one element of the federal arson statute- the element requiring a connection to interstate commerce.

The Supreme Court decided that element is jurisdictional in nature, and its absence did not remove the arson from classification as an aggravated felony. Therefore, the ruling denying relief was affirmed.

Any alien facing a criminal charge should consult a lawyer with knowledge and experience in both criminal and immigration law to learn whether the charge is an “aggravated felony” under the INA. Contact the Mazza Law Group today to talk to an experienced lawyer who can help you if you have an immigration issue relating to a criminal offense, or if you are a non-citizen charged with a crime.

Immigration Law Update: Removal based Aggravated Felony was last modified: June 3rd, 2016 by Helen Stolinas