Aggravated felonies
An aggravated felony is not a felony and does not have to be aggravated. It is any offense on the list Congress wrote into INA 101(a)(43), decided by comparing the elements of the offense to the federal definition, and several entries on that list turn on the sentence imposed rather than the crime. A misdemeanor theft with a one-year suspended sentence is an aggravated felony. It is the single most damaging label a plea can carry, because it closes almost every form of relief and makes detention mandatory.
Current as of October 2026. We re-check this page regularly and after any rule change.
Three questions decide whether a plea is an aggravated felony. Which entry on the list does the government say it matches? Does the offense, compared element by element to that entry, actually match? And, for the entries that turn on a number, what does the record say the sentence or the loss was? A plea can be steered on all three, and that is the work described on the plea strategy pages. This page is about the list itself and what it does. The overall map of criminal grounds is on the crimes and removal page.
The list
INA 101(a)(43) has twenty-one lettered entries. Some name an offense. Some point to a federal statute. Some add a threshold. The flush text at the end says the term applies to state offenses as well as federal ones, to certain foreign convictions, and "regardless of whether the conviction was entered before, on, or after September 30, 1996." Attempts and conspiracies to commit any listed offense are covered by (U).
| Entry | Offense | Threshold |
|---|---|---|
| (A) | Murder, rape, sexual abuse of a minor | None. The offense alone |
| (B) | Illicit trafficking in a controlled substance, including a drug trafficking crime under 18 U.S.C. 924(c) | None, but the state offense must be a felony under the federal Controlled Substances Act |
| (C) | Illicit trafficking in firearms, destructive devices or explosives | None |
| (D) | Money laundering, 18 U.S.C. 1956 or 1957 | Funds exceeding $10,000 (a statutory threshold) |
| (E) | Listed explosives and firearms offenses, including felon in possession under 18 U.S.C. 922(g) | None |
| (F) | A crime of violence, 18 U.S.C. 16 | Term of imprisonment of at least one year |
| (G) | A theft offense (including receipt of stolen property) or a burglary offense | Term of imprisonment of at least one year |
| (H), (I) | Ransom; child pornography | None |
| (J) | RICO and gambling offenses | Sentence of one year or more may be imposed |
| (K) | Running a prostitution business; transportation for prostitution; peonage, slavery, trafficking in persons | None |
| (L) | Espionage and related | None |
| (M)(i) | An offense involving fraud or deceit | Loss to the victim or victims exceeding $10,000 (a statutory threshold) |
| (M)(ii) | Tax evasion, 26 U.S.C. 7201 | Revenue loss exceeding $10,000 (a statutory threshold) |
| (N) | Alien smuggling under INA 274(a) | Except a first offense to assist only a spouse, child or parent |
| (O) | Illegal reentry after a removal that was based on an aggravated felony | The prior removal must have been for an aggravated felony |
| (P) | Document fraud, 18 U.S.C. 1543 or 1546(a) | Term of imprisonment of at least 12 months; except a first offense to assist only a spouse, child or parent |
| (Q), (T) | Failure to appear for sentence; failure to appear on a felony charge | Underlying offense punishable by 5 years, or 2 years, respectively |
| (R) | Commercial bribery, counterfeiting, forgery, trafficking in vehicles with altered identification numbers | Term of imprisonment of at least one year |
| (S) | Obstruction of justice, perjury, subornation of perjury, bribery of a witness | Term of imprisonment of at least one year |
| (U) | Attempt or conspiracy to commit any of the above | Follows the underlying entry |
INA 101(a)(43)(A)-(U) and flush text; 8 U.S.C. 1101(a)(43).
The sentence entries: a suspended year is a year
Entries (F), (G), (P), (R) and (S) turn on the term of imprisonment the court ordered. Under INA 101(a)(48)(B), that means the sentence imposed "regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." A one-year sentence suspended in full, with no day served, is a one-year sentence. Time actually served is irrelevant. Probation is irrelevant unless a term of imprisonment was imposed and suspended as a condition of it.
364 days is not one year
The threshold in (F), (G), (R) and (S) is "at least one year," which means 365 days. A sentence of 364 days, imposed or suspended, is below it. This single day is the reason New York reduced the maximum sentence for a class A misdemeanor to 364 days in 2019, and the reason a defense lawyer with a noncitizen client asks for 364 rather than "a year" every time a theft, assault, forgery or obstruction plea is on the table. The 364-day page covers how this works in New York, New Jersey, Florida and federal court.
Entry (J) is different. It asks whether a sentence of one year or more may be imposed, which is about the statutory maximum, not the sentence you got. Read the entry before you assume the threshold works the same way.
The dollar entries: what the record says the loss was
Entries (D), (M)(i) and (M)(ii) turn on an amount that exceeds $10,000, a statutory threshold, not a fee. In Nijhawan v. Holder, 557 U.S. 29 (2009), the Supreme Court held that the loss under (M)(i) is not an element of the offense to be analyzed categorically; it is decided from the record of the case under a circumstance-specific approach, and it must be tied to the specific count of conviction. A plea agreement, a stipulation, a restitution order or a sentencing finding that puts the loss above the threshold will be used. A plea to a count whose loss is below it, with restitution that matches, is the defense.
Under Kawashima v. Holder, 565 U.S. 478 (2012), tax offenses other than evasion, including filing a false return under 26 U.S.C. 7206, can be (M)(i) offenses involving fraud or deceit. The tax entry (M)(ii) is not the only way a tax plea reaches the list.
The named entries: what the federal definition requires
Whether an offense fits a named entry is decided under the categorical approach, described on the categorical approach page. The judge compares the elements of the offense of conviction to the generic federal definition and asks what the least serious conduct the statute punishes would be. Four Supreme Court decisions define the entries that come up most often in plea negotiations.
- Crime of violence, (F). After Sessions v. Dimaya, 584 U.S. 148 (2018), only 18 U.S.C. 16(a) survives: an offense that has as an element the use, attempted use or threatened use of physical force against the person or property of another. Under Leocal v. Ashcroft, 543 U.S. 1 (2004), negligent conduct does not qualify, and under Johnson v. United States, 559 U.S. 133 (2010), "physical force" means violent force, not offensive touching. Whether an offense that can be committed recklessly qualifies is governed, on identical statutory language, by Borden v. United States, 593 U.S. 420 (2021), and how the Board and the circuits apply Borden to 16(a) is a live question. Assault statutes are the ones to watch, so ask us about yours before you plead.
- Theft, (G). A theft offense requires a taking with intent to deprive. Whether a particular state statute is broader than the generic definition is litigated statute by statute, so we read yours with you rather than hand you a list.
- Illicit trafficking, (B). Under Lopez v. Gonzales, 549 U.S. 47 (2006), a state drug offense is "illicit trafficking" only if it would be a felony under the federal Controlled Substances Act. Under Moncrieffe v. Holder, 569 U.S. 184 (2013), a state distribution statute whose minimum conduct is sharing a small amount of marijuana for nothing is not, because that is a federal misdemeanor. Under Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), a second possession conviction is not an aggravated felony unless recidivism was charged and proved.
- Sexual abuse of a minor, (A). Under Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017), where the offense turns solely on the age of the victim, the generic federal definition requires a victim younger than 16.
Under Luna Torres v. Lynch, 578 U.S. 452 (2016), a state offense can match a federal statute on the list even though the state version lacks the federal interstate-commerce element. The comparison is to the substantive elements.
What an aggravated felony conviction closes
This is why the label matters more than any other. The list below is what the statute says, form by form. The pages on the immigrationtrial.com site explain how each form of relief is litigated in court; this page is about eligibility.
| Consequence | Effect | Authority |
|---|---|---|
| Deportability | Removable at any time after admission, regardless of sentence or date | INA 237(a)(2)(A)(iii) |
| Mandatory detention | No bond hearing before the immigration judge | INA 236(c)(1)(B) |
| Cancellation for permanent residents | Barred | INA 240A(a)(3) |
| Cancellation for non-permanent residents | Barred (any 237(a)(2) conviction bars it) | INA 240A(b)(1)(C) |
| VAWA cancellation | Barred | INA 240A(b)(2) |
| Asylum | Barred: an aggravated felony is per se a particularly serious crime | INA 208(b)(2)(A)(ii), (B)(i) |
| Withholding of removal | Barred where the aggregate sentence is 5 years or more; otherwise decided case by case | INA 241(b)(3)(B) |
| Deferral of removal under CAT | Open. No criminal bar | 8 C.F.R. 1208.17(a) |
| Voluntary departure | Barred, before and at the conclusion of proceedings | INA 240B(a)(1), (b)(1)(C) |
| Good moral character, naturalization | Permanently barred for a conviction on or after November 29, 1990 | INA 101(f)(8); 8 C.F.R. 316.10(b)(1)(ii) |
| The 212(h) waiver | Barred only for a person who entered at a port of entry as a permanent resident; a person who adjusted inside the country is not subject to the bar | INA 212(h); Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) |
| Former 212(c) relief | Barred only if you served five years or more | former INA 212(c); 8 C.F.R. 1212.3(f) |
| Court review | Review of the final order is limited to constitutional claims and questions of law | INA 242(a)(2)(C), (D) |
Whether a conviction is an aggravated felony is a question of law, and under Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), the courts of appeals retain jurisdiction to decide it. That is the one door the label does not close.
What this means at the plea
If the offered plea is on the list, the question is whether a different plea is not. Four negotiating points follow from the entries above.
364 days, not a year
A sentence of 364 days instead of a year keeps a theft, crime of violence, forgery or obstruction plea below the one-year threshold in entries (F), (G), (R) and (S).
A count below the loss threshold
A plea to a count whose loss is below the $10,000 statutory threshold in (M)(i), with a restitution order that matches.
Elements outside the definition
A plea to an offense whose elements do not require violent force, or intent to permanently deprive, or a federally controlled substance.
Attempt of an offense not on the list
A plea to attempt where the underlying offense is not on the list, rather than to an offense that is.
Each of these is a negotiating point, and each has to be checked against the actual statute and the record that will result. The immigration-safer pleas page goes through them.
If the plea has already been entered, the questions become whether it actually matches the entry under the categorical approach, whether the record establishes the threshold, and whether the conviction can be vacated for a defect. That is after a plea.
Read next: crimes involving moral turpitude, the 364-day sentence, fraud and theft offenses, or the categorical approach.
Common questions
Can a misdemeanor be an aggravated felony?
Yes. Several entries in INA 101(a)(43) turn on the sentence imposed, not on how the state classifies the crime. A theft offense, a crime of violence, forgery or obstruction with a term of imprisonment of at least one year is an aggravated felony under subsections (F), (G), (R) and (S), and under INA 101(a)(48)(B) a suspended sentence counts in full. A misdemeanor with a one-year sentence, suspended or not, qualifies.
Does it matter that my conviction is from before 1996?
For the definition itself, no. The last sentence of INA 101(a)(43) says the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996. What can still matter is relief: a permanent resident who pleaded guilty before April 1, 1997 may still be eligible for former 212(c) relief under INS v. St. Cyr, and Vartelas v. Holder protects pre-1997 convictions from the returning-resident rule in 101(a)(13)(C)(v).
Is a drug possession conviction an aggravated felony?
Usually not. Under Lopez v. Gonzales, a state drug offense is illicit trafficking only if it would be punishable as a felony under the federal Controlled Substances Act, and simple possession is a federal misdemeanor. Under Carachuri-Rosendo v. Holder, a second possession conviction is not an aggravated felony unless the recidivist enhancement was actually charged and proved in the criminal case. Possession is still a controlled-substance ground of removal, which is serious on its own.
What does the $10,000 in the fraud entry refer to?
The loss to the victim or victims, under INA 101(a)(43)(M)(i). Under Nijhawan v. Holder that amount is decided from the record of the case, not from the elements of the statute, and it has to be tied to the count of conviction. A plea to a count whose loss is under the threshold, with a restitution order that matches, is one of the most important things a defense lawyer can negotiate for a noncitizen client.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.