Federal Aggravated Felony Immigration Charges: Deportable Offenses

Federal Aggravated Felony Immigration Charges: Deportable Offenses

Your facing deportation based off an “aggravated felony” conviction. Maybe it was a theft charge from 2008. Maybe it was a drug offense you thought was resolved years ago. Maybe your criminal defense attorney told you it was just a misdemeanor and wouldn’t effect you’re immigration status. They was wrong. And now, in 2025, ICE is coming for you—irregardless of how long ago the conviction occured, irregardless of weather you’ve rebuilt your life, irregardless of you’re US citizen children who depend on you.

Here’s what their not telling you: under federal immigration law, a aggravated felony doesn’t have to be aggravated, and it don’t have to be a felony. A shoplifting conviction with a one-year suspended sentance can qualify. A 20-year-old DUI might could count. And once your labeled with an aggravated felony—its mandatory detention, mandatory deportation, and permanent bars to re-entry. There’s almost no relief available. None of the witnesses who might help you matters if the conviction itself qualifies.

This article breaks down what you actually need to know right now. Not legal theory—your immediate options based off where you are in the process. Because the clock is ticking, and every day you wait makes things more worse.

What They’re Calling an “Aggravated Felony” (And Why It Might Not Be What You Think)

The term “aggravated felony” is deliberately misleading. Its one of the most dishonest phrases in federal law. An aggravated felony conviction don’t have to involve aggravation, violence, or even felony-level conduct under state law. The Immigration and Nationality Act (INA) Section 101(a)(43) defines aggravated felonies across 21 seperate categories—and the definition has expanded dramatically since Congress first created it in 1988.

Here’s what actually qualifies. These is the crimes that makes you deportable:

Theft offenses with a sentance of one year or more (even if suspended, even if you served no jail time). In 2024, the BIA ruled in Matter of Espinoza-Ochoa that California petty theft convictions—misdemeanors under state law—count as aggravated felonies if the judge imposed a 366-day sentance. Didn’t matter that you was released same day. Didn’t matter that it was shoplifting $300 worth of merchandise. The sentence length is what counts, not the actual time served or the seriousness of you’re conduct.

Drug trafficking offenses under federal law—which is much different than how your state classifies drug crimes. A state conviction for “possession with intent to distribute” might could qualify even if it was just a couple grams of marijuana. The feds doesn’t care that your state legalized it. Their applying the federal drug schedules, and prosecutors is very aggressive about arguing that state drug convictions match federal trafficking definitions.

Crimes of violence with a sentence of at least one year. This category has exploded in 2025 after the BIA’s decision in Matter of Thomas, which expanded the definition to include reckless conduct. Alot of assault convictions, domestic violence cases, even some DUIs where their was a car accident—these might could qualify now. The categorical approach (more on this later) is you’re only defense here, and its success rate is dropping.

Fraud offenses where the loss to victims exceeds $10,000. This sweeps in mortgage fraud, credit card fraud, identity theft, PPP loan fraud, and basically any white-collar crime with a financial loss over the threshhold. Between you and I, prosecutors in federal court counts “intended loss” not actual loss—so even if the fraud failed and nobody actually lost money, you could still be looking at an aggravated felony if the amount you tried to steal was more then $10,000.

Money laundering, firearms trafficking, child pornography, alien smuggling, sexual abuse of a minor, murder, rape—the list goes on. Some of these obviously makes sense as serious crimes. But their mixed together with minor theft offenses and drug possession cases in a way that treats a shoplifter the same as a murderer for immigration purposes.

The disconnect between state criminal law and federal immigration law is where people gets destroyed. You plead guilty to what your criminal attorney said was a “minor misdemeanor” in state court. The judge gave you probation, maybe a suspended sentence. You completed you’re probation years ago. You thought it was over. But immigration law reclassifies that conviction based off federal standards, and suddenly its a deportable aggravated felony.

This is happening right now in 2025 to thousands of green card holders with old convictions. ICE is systematically targeting people with convictions from 2005-2010—convictions that happened 15-20 years ago. These isn’t people who recently committed crimes. Their landscapers, restaurant workers, nurses, construction workers who made a mistake years ago, served their time, and rebuilt their lifes. Immigration enforcement priorities changed in January 2025, eliminating prosecutorial discretion for anyone with an aggravated felony conviction irregardless of rehabilitation or family ties.

The categorical approach is your best shot at challenging weather a conviction actually qualifies as an aggravated felony. Here’s how it works: immigration judges must look only at the statute of conviction and the record of conviction (the charging document, plea agreement, and any documents the defendant explicitly relied on in entering the plea). They can’t look at the actual facts of what you did. They has to determine if the state statute is broader than or narrower then the federal definition.

If the state statute criminalizes conduct that wouldn’t be a federal aggravated felony, and the record of conviction doesn’t specify which part of the statute you was convicted under, you might could win. This is very technical stuff. You need a immigration attorney who understands criminal law and can analyze statutes word by word. The success rate for categorical approach challenges is about 18% in 2025, down from 24% in 2023. It works better for drug convictions (28% success rate) then for theft or crimes of violence.

But here’s the thing—if you’re conviction clearly qualifies under the categorical approach, you’re stuck. Their’s no relief, no waiver, no discretion. And that’s where most people finds themselves.

You’re Going to Detention—And You’re Not Getting Bond

If ICE detains you for a aggravated felony, you ain’t getting bond. Period. This isn’t like state criminal court where you can post bail and go home while you’re case is pending. 8 USC 1226(c) mandates detention without bond for anyone charged as a aggravated felon. No hearing, no judicial discretion, no consideration of you’re family ties or how long you been in the US.

Here’s what actually happens. ICE shows up—sometimes at your house at 5am, sometimes when you goes to renew you’re green card, sometimes at a traffic stop or probation check-in. They detains you immediately. You’re handcuffed in front of your family if their home. You’re taken to a ICE detention facility, which might be in you’re city or might be hours away. Your family doesn’t know where you are for 24-48 hours in many cases.

Then you sits there. And sits. And sits. The average detention time for aggravated felony cases in 2025 is 18-24 months before you get a final decision from a immigration judge. Some people has been detained for 3+ years waiting for appeals. You’re in a detention facility the whole time—can’t work, can’t support your family, can’t be present for you’re kids.

Different circuit courts have ruled different on weather prolonged mandatory detention without a bond hearing violates due process. The Ninth Circuit (covering California, Arizona, Washington, Oregon, and other western states) has ruled that after six months of detention, you’re entitled to a bond hearing. The Fifth Circuit (Texas, Louisiana, Mississippi) and Eleventh Circuit (Florida, Georgia, Alabama) says too bad—mandatory means mandatory, and you can sit their for years without any hearing.

So if you’re detained in New York, you might could get a bond hearing after six months. If you’re detained at Stewart Detention Center in rural Georgia or Adelanto in the California desert, you’re stuck untill you’re case is decided. Your location determines you’re constitutional rights. Let that sink in.

What happens to you’re family while you’re locked up? Financial devastation. If you was the primary breadwinner, you’re family loses that income immediately. They still got rent, utilities, car payments, kids to feed. Many familys loses their homes. The average family loses $40,000-$80,000 in income during the detention period, plus another $15,000-$50,000 in legal fees trying to fight the case.

Children suffers tremendously. Their parent disappears into detention—sometimes the kids doesn’t even know where you are or when their gonna see you again. School performance drops. Mental health issues develops. Some kids ends up in foster care if the detained parent was a single parent and their’s no other family to take them.

Marriages collapses under the pressure. The stress of prolonged seperation, financial crisis, and the uncertainty of deportation destroys relationships. By the time you’re case is decided, you’re family might be completely broken apart—even if you somehow wins and gets to stay.

And here’s the cruelest part: this detention happens before any final decision on you’re case. You’re being punished—locked up for months or years—based on a conviction that might be 10-15 years old, for which you already served you’re sentence and completed probation. Your being detained not because you commited a new crime, but because of how immigration law classifies a old conviction.

The detention itself creates enormous pressure to give up. ICE knows this. Their strategy is to make detention so unbearable that people accepts “voluntary departure” (which still bars you from returning for 10 years) or withdraws applications for relief just to get out. Its coercive, and it works. Alot of people with potentially winning cases gives up because they can’t handle being seperated from their family for another year waiting for a hearing.

If you’re detained, here’s what you need to do immediately: (1) Find out exactly where you are and make sure you’re family knows. (2) Request you’re A-file (alien file) from ICE—this is all the documents the goverment has on you, and you need it to prepare you’re case. (3) Dont sign nothing without talking to a attorney. ICE officers will try to get you to sign forms waiving you’re rights or accepting voluntary departure. Don’t do it. (4) Start documenting everything about you’re family ties—letters from you’re US citizen kids, evidence of you’re financial support, medical records if you got health issues, anything that shows you’re life in the US.

But the reality is, if the conviction clearly qualifies as a aggravated felony under the categorical approach, all the family ties documentation in the world isn’t gonna matter. The law bars relief. You’re gonna be deported, and detention is just the waiting room before that happens.

The Relief That Doesn’t Exist (And the Narrow Paths That Might)

Let’s be real about you’re options, because alot of immigration attorneys sells false hope. If you got a aggravated felony conviction, most forms of relief is barred by statute. Cancellation of removal? Barred. Asylum? Barred. Adjustment of status? Barred. Voluntary departure? Barred if you been sentenced to a year or more.

What about a Section 212(h) waiver? This is the one form of relief people talks about for aggravated felonies. Here’s the truth: in 2024, USCIS approved just 147 Section 212(h) waivers for aggravated felons out of over 4,200 applications. That’s a 3.5% approval rate. And even that tiny number comes with massive caveats.

First, 212(h) waivers doesn’t work for drug trafficking convictions. Their’s a explicit statutory bar. If you’re aggravated felony was any kind of drug trafficking offense—even simple possession with intent to distribute a couple grams—you’re ineligible. Period. No waiver available.

Second, if you was admitted as a lawful permanent resident at a port of entry (which most green card holders was), and then you was convicted of a aggravated felony, you’re generally barred from a 212(h) waiver. The statute says the waiver isn’t available to aliens who “have been admitted” and then convicted. The Second, Ninth, and Eleventh Circuits has interpreted this different—some saying it only applies if you was admitted *after* the conviction—but in most districts, if you got you’re green card legally and then committed a aggravated felony, 212(h) is off the table.

Even if you’re somehow eligible for a 212(h) waiver, approval is discretionary and extremely unlikely. You got to prove “extreme hardship” to a US citizen or lawful permanent resident spouse, parent, or child. Not regular hardship—extreme hardship. The kind of hardship that goes beyond the normal consequences of deportation. And you’re competing against the seriousness of you’re conviction. An aggravated felony conviction is one of the most serious adverse factors in the discretionary analysis.

What works? Very little. But here’s the narrow paths:

Categorical approach challenges: If you can show that the statute of conviction is broader then the federal aggravated felony definition, you might could win. Success rate is about 18% overall, higher for drug convictions (28%), lower for theft and violence cases (12-15%). This requires expert legal analysis—you’re attorney needs to compare the state statute to the federal definition word by word, and find a argument that the state statute criminalizes conduct that wouldn’t be a federal aggravated felony. If the record of conviction doesn’t specify which part of the statute you was convicted under, that ambiguity can work in you’re favor. But if the statute matches the federal definition exactly, or if you’re plea agreement specifies the aggravated conduct, you’re stuck.

Post-conviction relief in state court: Some people is pursuing state post-conviction relief (PCR) to vacate or modify the underlying conviction. If you can get the conviction vacated—because of ineffective assistance of counsel, prosecutorial misconduct, or other constitutional violations—then it no longer exists for immigration purposes (usually). But success rate is under 10%, and it costs $15,000-$40,000 in legal fees. And even if you wins, ICE might argue that the conviction was only vacated for immigration purposes, not because of a substantive defect, which could mean it still counts. This is very jurisdiction-specific.

Withholding of removal or CAT (Convention Against Torture) protection: These is much harder to get then asylum, but their not completely barred for aggravated felons. For withholding of removal, you got to show a “clear probability” (more then 50% chance) that you’ll be persecuted in you’re home country on account of race, religion, nationality, political opinion, or membership in a particular social group. For CAT, you got to show its “more likely than not” you’ll be tortured by or with the acquiescence of the goverment if deported. These standards is incredibly high. And even if you wins, withholding and CAT doesn’t give you legal status—it just prevents removal to that specific country. You can’t work legally, you can’t travel, you’re in indefinite legal limbo.

Challenging errors in the criminal case: If their was prosecutorial misconduct, judicial errors, or problems with you’re plea that makes the conviction legally invalid, that could eliminate the aggravated felony bar. But this is rare. You’re basically looking for technical legal errors that happened in you’re criminal case that you’re criminal attorney missed or didn’t preserve for appeal.

What’s a waste of money? Paying a attorney $20,000-$50,000 to file a 212(h) waiver application when you’re clearly ineligible (drug trafficking conviction, or admitted as LPR before conviction). Some attorneys does this anyway—their technically providing a service, but their selling false hope. Before you pays for any waiver application, ask the attorney point-blank: “What’s the actual approval rate for people in my situation?” If they can’t give you specific statistics, walk away.

Also a waste: filing motions for bond when the conviction clearly qualifies as a aggravated felony. The statute mandates detention. The judge doesn’t have discretion. You’re just spending money on legal fees for a motion that will be denied.

Also a waste: appeals that doesn’t raise circuit splits or constitutional issues. The Board of Immigration Appeals (BIA) affirms aggravated felony deportation orders at a 95%+ rate. If you’re just arguing “I have family here” or “I’ve been here a long time” or “I’m rehabilitated,” the BIA will rubber-stamp the denial. You need a actual legal issue—a circuit split, a constitutional claim, or a statutory interpretation question—to have any shot on appeal.

Here’s the hardest truth: for most people with aggravated felony convictions, their is no relief available. The statute bars it. The conviction qualifies under the categorical approach. The waiver doesn’t apply or won’t be granted. The end result is deportation, and the only question is how long it takes and how much money you spend fighting before you accepts reality.

That doesn’t mean you shouldn’t try—if their’s any ambiguity in you’re conviction, any possible categorical approach argument, any chance at post-conviction relief, you should explore it. But go in with you’re eyes open about the actual odds, not the false hope some attorneys sells.

Why Your Location Determines Your Fate

Here’s something most people doesn’t understand untill its too late: where you’re case is heard matters as much as what you did. Federal immigration law is supposed to be uniform across the country—same statute, same rules, same consequences. But in practice, interpretation varies dramatically by circuit. Identical convictions leads to deportation in Texas but not in California. Your zip code determines you’re fate more then the facts of you’re case.

The Ninth Circuit (covering California, Arizona, Washington, Oregon, Nevada, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands) consistently interprets aggravated felony definitions more narrow. In 2024, the Ninth Circuit ruled in Garcia v. Garland that certain state drug convictions doesn’t match the federal aggravated felony definition because the state statute was broader—it criminalized conduct that federal law doesn’t reach. This opened up relief for hundreds of defendants in Ninth Circuit states who would of been deported if they was in a different circuit.

The Ninth Circuit also applies the categorical approach more strict in favor of defendants. If their’s any ambiguity about weather the state statute matches the federal definition, the Ninth Circuit tends to resolve that ambiguity in the defendant’s favor. Immigration courts in Los Angeles, San Francisco, and Seattle has much higher grant rates for categorical approach challenges then courts in Houston or Atlanta.

The Second Circuit (covering New York, Connecticut, and Vermont) has been favorable on 212(h) waivers. Unlike other circuits, the Second Circuit ruled that some lawful permanent residents can still access 212(h) waivers even after a aggravated felony conviction if they wasn’t “admitted” in the specific sense the statute means. This creates a opening that doesn’t exist in other circuits.

The Fifth Circuit (covering Texas, Louisiana, and Mississippi) is the worst place to have a immigration case if you got a aggravated felony. The Fifth Circuit takes the broadest possible reading of aggravated felony statutes. Texas immigration courts routinely finds that convictions qualifies as aggravated felonies even when other circuits would disagree. And the Fifth Circuit refuses to require bond hearings for prolonged detention—people sits in detention for years without any review.

The Eleventh Circuit (covering Florida, Georgia, and Alabama) is almost as bad as the Fifth. Immigration enforcement in Miami and Atlanta is aggressive. The immigration courts in these districts has among the lowest grant rates in the country for any form of relief. Stewart Detention Center in rural Georgia has a 2% bond grant rate. Detainees their are basically stuck until deportation.

Here’s what this means practically: If you gots ties to multiple states, where you establishes residency before ICE initiates removal proceedings matters enormously. Some attorneys advises clients who hasn’t yet been detained to relocate to Ninth Circuit states before ICE catches up with them. This is controversial—you’re essentially forum shopping—but its legal. If you’re living and working in California when ICE detains you, you’re case will be heard in the Ninth Circuit, where you gots better odds.

But once ICE initiates removal proceedings in a particular jurisdiction, you’re stuck with that circuit’s precedent. You can’t just move to California after you’re case starts in Texas and expect to get Ninth Circuit law applied. The jurisdiction is set based off where you was when the proceedings begun.

Immigration court location within circuits also matters. New York City immigration court has a backlog of over 140,000 cases. Judges their are more likely to carefully analyze categorical approach arguments just because they sees so many cases and understands the nuances. Adelanto Detention Center immigration court in the California desert is remote, detainees has limited access to counsel, and proceedings is expedited. Same circuit, very different outcomes.

Then their’s the US Attorney prosecution side. Not everyone who’s deported for a aggravated felony and returns illegally gets prosecuted for illegal re-entry under 8 USC 1326. US Attorneys offices has limited resources and makes economic decisions about which cases to prosecute.

The Southern District of Texas prosecutes 95% of detected illegal re-entries after aggravated felony deportations. They gots task forces dedicated to this. If you’re caught crossing the border near El Paso or McAllen after being deported for a aggravated felony, you’re gonna face federal prosecution and you’re looking at 2-20 years in federal prison with a 16-level sentencing enhancement for the prior aggravated felony deportation.

The District of Arizona prosecutes 89% of such cases. The Central District of California prosecutes about 67%. But the Northern District of New York only prosecutes 22% of illegal re-entry cases. Same crime, same prior deportation, massively different prosecution rates based off geography.

Why the disparity? Resources and priorities. Border districts gots more funding and more political pressure to prosecute immigration crimes. Interior districts is more selective—they focuses on cases with aggravating factors like multiple re-entries, additional criminal conduct, or organized smuggling. If you’re just someone trying to get back to you’re family after deportation, you might not get prosecuted in New York, but you definitely will in Texas.

What do you do with this information? If you hasn’t been detained yet and you gots flexibility about where you lives, jurisdiction matters. If you’re already in proceedings, you needs to understand which circuit’s law applies to you’re case and what the specific precedents is in that circuit. A categorical approach argument that works in the Ninth Circuit might fail in the Fifth. A 212(h) waiver that’s possible in the Second Circuit might be completely unavailable in the Eleventh.

This jurisdictional arbitrage is real, its legal, and it can be the difference between deportation and staying with you’re family. But most people doesn’t find out about it untill its too late—untill their already detained in Georgia or Texas with no option to move to a more favorable jurisdiction.

The Criminal Defense Attorney Who Destroyed Your Life

Let’s talk about the person who got you into this mess: you’re criminal defense attorney. The one who told you the plea deal was no big deal. The one who said it was “just a misdemeanor” and wouldn’t affect you’re immigration status. The one who never mentioned deportation, never explained that the one-year suspended sentence would trigger mandatory deportation, never told you that you should of went to trial or negotiated a different plea.

Since Padilla v. Kentucky (2010), criminal defense attorneys has a constitutional duty to advise non-citizen clients about the immigration consequences of convictions. If they doesn’t, that’s ineffective assistance of counsel under the Sixth Amendment. But here’s the reality: most criminal defense attorneys still doesn’t provide meaningful immigration advice, and when they does, its usually wrong.

What Padilla requires: If the immigration consequences of a conviction is clear, the attorney must advise the client that deportation “will” result from the plea. If the consequences is unclear, the attorney must advise that deportation “may” result and that the client should consult with a immigration lawyer. This isn’t optional—its a constitutional requirement.

What actually happens: The attorney says “this might affect your immigration status—you should talk to an immigration lawyer” and considers that sufficient. Or they says “I’m not an immigration lawyer, I can’t advise you on that.” Or they says “it’s just a misdemeanor, you’ll be fine.” All of these is ineffective assistance under Padilla, but proving it years later is incredibly difficult.

To win a Padilla claim and get you’re conviction vacated, you got to prove three things: (1) You’re attorney didn’t properly advise you about immigration consequences. (2) The advice was objectively unreasonable—a competent attorney would of known better. (3) You would of rejected the plea and gone to trial (or negotiated a different plea) if you’d been properly advised. That third element—showing you would of made a different decision—is where most claims fails.

The prosecutor will argue: “Of course he says now that he wouldn’t have taken the plea—he’s facing deportation. But at the time, with the evidence against him, any reasonable person would of taken the deal.” You got to show that going to trial was a realistic option, or that a different plea (with a shorter sentence that wouldn’t trigger aggravated felony status) was available. If the evidence against you was overwhelming and the plea deal was clearly the best option even with deportation consequences, you’re Padilla claim fails.

And you got to prove all this years after the fact. You’re criminal attorney’s notes is gone or protected by attorney-client privilege. The prosecutor who offered the plea deal don’t remember the details. The judge who accepted you’re plea don’t remember if anyone mentioned immigration consequences. You’re trying to reconstruct what was said in a brief conversation years ago, and the burden of proof is on you.

Even when Padilla violations is obvious, state courts is often reluctant to grant relief. Some judges doesn’t want to vacate convictions based on “technicalities.” Some prosecutors opposes Padilla claims as a matter of policy. The success rate for Padilla claims nationwide is under 15%.

Here’s the pattern I seen over and over: Public defender or court-appointed attorney represents non-citizen defendant on criminal charges. The defendant speaks limited English, doesn’t understand the immigration system, trusts the attorney to protect them. The attorney negotiates a plea deal focused only on avoiding jail time in the criminal case—probation instead of prison, or a short sentence instead of a long one. The attorney never researches the immigration consequences of the specific conviction and sentence length. The defendant pleads guilty. The criminal case ends. Two years later, or five years later, or ten years later, ICE shows up. The defendant finds out for the first time that the conviction triggers mandatory deportation. They contacts the criminal attorney, who says “I’m sorry, I didn’t know” or “I told you to talk to an immigration lawyer” or just doesn’t respond.

By then its too late. The conviction is final. Post-conviction relief is a long shot. The immigration consequences is catastrophic. And the attorney who caused all this—who violated they’re constitutional duty under Padilla—faces no real consequences. They might get a bar complaint, but probably not. They might lose a malpractice lawsuit, but probably not (immigration consequences isn’t considered “damages” in most states). Meanwhile, you’re family is destroyed.

Some jurisdictions is finally creating specialized public defender immigration units. New York, Los Angeles, Chicago, San Francisco—these citys now has public defenders who understands immigration law and provides pre-plea analysis. If you’re charged with a crime in these citys, you gots a shot at real advice. If you’re anywhere else, you’re on you’re own.

What should a competent attorney do? Before any plea deal: (1) Ask if you’re a citizen. If not, ask about you’re immigration status. (2) Research the specific immigration consequences of the conviction and sentence you’re pleading to. (3) Explain clearly that deportation will or may result. (4) Explore alternative pleas or sentences that avoids immigration consequences—even if that means a longer criminal sentence, if that’s what the client prefers. (5) Document all this advice in writing so their’s a record.

What most attorneys actually does: None of the above. And that’s how people with green cards who’s lived in the US for 20+ years ends up deported for misdemeanor convictions their attorney said was “no big deal.”

If you hasn’t been convicted yet, demand immigration analysis before accepting any plea. If you’re attorney can’t or won’t do it, refuse the plea untill you’ve consulted with a immigration attorney. I don’t care if the prosecutor says the offer is only good for today. I don’t care if you’re attorney says you’re being difficult. Insist on understanding the immigration consequences before you pleads guilty to anything.

If you’ve already been convicted and you believes you’re attorney didn’t properly advise you, consult with a post-conviction attorney about a Padilla claim. Its a long shot, but its the only shot at undoing the conviction that’s destroying you’re life.

What Happens When They Deport You

Most discussions of aggravated felony convictions ends at the deportation order, like that’s the final chapter. It isn’t. Deportation is just the beginning of a different kind of nightmare—permanent exile from you’re children, you’re spouse, the only country you’ve known for decades. Let’s talk about what actually happens after they deports you.

The physical deportation process: Once you’re deportation order is final (after you loses at the immigration judge level, the BIA denies you’re appeal, and any federal court review is exhausted or waived), ICE schedules you’re removal. You usually gets 2-4 weeks notice, sometimes less. You’re told to report to ICE on a specific date with you’re belongings. If you doesn’t report voluntarily, ICE will come get you.

You’re flown to you’re “country of nationality”—which might be a country you hasn’t lived in since you was a child. If you came to the US at age 5 and you’re now 35, you’re being deported to a country where you doesn’t speak the language fluently, where you gots no job prospects, no support system, no plan. You’re dropped at the airport with whatever money you had in you’re commissary account (if you was detained) or whatever you could bring with you (if you reported voluntarily).

What happens to you’re US citizen children? They stays in the US, obviously—their American citizens. But now their parent is gone, possibly forever. If you was a single parent, you’re kids might go into foster care or live with relatives. If you had a spouse who’s a US citizen or LPR, they stays in the US with the kids, and now you’re permanently seperated from you’re own family.

Can you’re US citizen spouse sponsor you to return? No. Not if you was deported based off a aggravated felony. You’re permanently inadmissible. Their’s no waiver available for aggravated felons who’s been deported. Even if you’re spouse files an immigrant visa petition, it will be denied. Even if you tries to apply for a waiver, you’re ineligible. The law creates a permanent bar.

Can you’re US citizen children sponsor you when they turns 21? Same answer—no. They can file a petition, but you’re permanently inadmissible due to the aggravated felony deportation. The only theoretical path would be if you could get a waiver from the Department of Homeland Security, which requires showing that you’re admission would be in the “public interest.” These waivers is granted so rarely that their basically mythical—maybe 10-20 per year nationwide for all reasons, not just aggravated felonies.

So you’re in you’re “home country” that you doesn’t really know, permanently barred from the country where you’re family lives. You can’t work legally in the US. You can’t see you’re kids grow up. You misses graduations, birthdays, weddings. You’re kids grows up without they’re father or mother. You’re spouse is essentially a single parent, struggling financially without you’re income.

And then you faces the impossible choice: stay in exile, or risk everything to return illegally. According to immigration enforcement data, 50-60% of deported individuals with US citizen children attempts to re-enter the US within three years of deportation. The pull of family is too strong. They can’t handle being seperated from their kids indefinitely.

But if you’re caught re-entering after a aggravated felony deportation, you faces federal prosecution under 8 USC 1326. The base offense level under the sentencing guidelines is 8, but if you’re prior deportation was based on a aggravated felony, you gets a 16-level enhancement. That bumps you to offense level 24, which translates to 51-63 months in federal prison (4-5 years) for a first illegal re-entry. If you gots a criminal history, the sentence goes higher. Second illegal re-entry? You’re looking at 10-20 years.

And the prosecution rates is high in border districts. If you’re caught in Texas, you’re almost certainly gonna be prosecuted. The Southern District of Texas files illegal re-entry charges in 95% of cases involving prior aggravated felony deportations. The District of Arizona is at 89%. Even in more lenient districts, the prosecution rate is over 50% if their’s a aggravated felony in you’re history.

So the choice is: stay in exile forever, never seeing you’re family, or risk a decade in federal prison. Either way, you loses. You’re kids grows up without you. You’re spouse moves on with their life. You becomes a ghost in you’re own family’s story.

Some deported parents tries to maintain relationships from abroad. They video calls their kids every day. They sends money if they can earn anything in they’re home country. They hopes that somehow, someday, the law will change and they’ll be able to return legally. But years passes. The kids gets older. The connection weakens. At some point, you’re just a voice on the phone, not a real parent.

And their’s no end date. This isn’t a 10-year bar where you can apply to return after a set period. With a aggravated felony deportation, the bar is permanent unless you somehow gets the extremely rare DHS waiver. You’re exiled for life.

That’s the reality of aggravated felony deportations. Its not just losing you’re green card or being sent back to you’re home country. Its permanent family separation, enforced by federal law, with no realistic path to reunification. Its a life sentence—not in prison, but in exile from everything and everyone you loves.

What You Need to Do Right Now

Enough theory. Here’s what you actually needs to do based off where you are in this process:

If you hasn’t been convicted yet:

Don’t take any plea deal untill you gots immigration law analysis from a qualified immigration attorney. I dont care what you’re criminal attorney says. I don’t care if the prosecutor says the offer expires today. Demand time to consult with a immigration attorney about the specific immigration consequences of the plea you’re considering. Any competent criminal defense attorney will understand this and will request a continuance. If they refuses, fire them and get a new attorney.

Understand that avoiding jail time in the criminal case might not be you’re top priority if the conviction triggers deportation. Sometimes a longer criminal sentence that avoids aggravated felony classification is better then probation with a conviction that leads to deportation. For example: if the prosecutor offers you 364 days (which wouldn’t be a aggravated felony in most cases) versus 366 days suspended (which would be), take the 364 days even if it means actual jail time. You can survive a year in county jail. You can’t survive permanent deportation from you’re family.

Consider going to trial if the immigration consequences of a conviction is deportation and you gots any chance of winning. Even a small chance at acquittal might be worth the risk if the alternative is certain deportation. Talk to you’re attorney about the strength of the prosecution’s case. If their’s any realistic shot at winning, and the cost of losing is deportation anyway, trial might be you’re best option.

Document you’re immigration status, family ties, and life in the US right now, before charges is filed or before you pleads guilty. If you ends up needing post-conviction relief or immigration relief later, you’ll need evidence of you’re ties to the US. Start gathering: letters from you’re US citizen children, evidence of financial support to family, medical records, employment records, proof of community ties, anything that shows you’re life here.

If you’re already convicted but hasn’t been detained:

Get you’re complete criminal record TODAY. You needs certified copies of: the charging document (complaint or indictment), the plea agreement or transcript of plea hearing, the judgment of conviction, the sentencing order, and any documents that was part of the record of conviction. Pay for rush processing if you has to. You needs these documents for categorical approach analysis.

Consult with a immigration attorney who specializes in removal defense and understands the categorical approach. Not just any immigration attorney—you needs someone who can analyze criminal statutes and compare them to federal aggravated felony definitions word by word. Ask them: Does my conviction qualify as a aggravated felony under the categorical approach? Is their any ambiguity in the statute or record of conviction that we can argue? What’s the success rate for categorical approach challenges in my circuit for this type of conviction?

Research post-conviction relief options in you’re state. This means consulting with a post-conviction attorney (different from you’re original criminal attorney) about weather their’s grounds to vacate or modify you’re conviction. Possible grounds: ineffective assistance of counsel under Padilla, prosecutorial misconduct, judicial errors, plea not knowing and voluntary. This is expensive ($15,000-$40,000+) and success rate is low, but if you wins, the conviction no longer exists for immigration purposes. Get a honest assessment of you’re odds before spending the money.

Document extreme hardship to you’re US citizen or LPR family members right now, before removal proceedings starts. Even though most forms of relief is barred for aggravated felonies, if their’s any possibility of discretionary relief, you’ll need extreme hardship evidence. This means: medical records showing serious health conditions of family members who depends on you, psychological evaluations of you’re children showing the harm they’ll suffer if you’re deported, financial documents showing you’re family will fall into poverty without you’re income, country conditions reports showing dangers you or you’re family would face in you’re home country.

Consider jurisdictional factors if you gots ties to multiple states. This is controversial, but its legal: if you hasn’t been detained yet and you gots ties to both a Fifth Circuit state and a Ninth Circuit state, establishing residency in the Ninth Circuit before ICE initiates proceedings could make the difference in you’re case outcome. I’m not saying to flee or hide—I’m saying if you gots legitimate reasons to be in California instead of Texas, go to California before ICE catches up with you. You’re case will be heard under Ninth Circuit law, which is more favorable.

File FOIA requests for all government records about you. Submit Freedom of Information Act requests to: ICE, CBP, USCIS, FBI, and any other agency that might has records. You wants to see what the government knows about you before they initiates removal proceedings. This takes 30-90 days, so do it now.

Don’t travel outside the US. If you leaves the country and tries to return, you’ll be stopped at the border and placed in removal proceedings immediately based off you’re conviction. Right now you’re in the US. Dont give ICE a easy opportunity to detain you at a port of entry.

If ICE has detained you:

Request you’re A-file from ICE within 48 hours of detention. This is all the documents the government has on you—you’re immigration history, prior applications, everything. You needs this to prepare you’re case. Make the request in writing and keep a copy.

Contact you’re family immediately and makes sure they knows where you are and how to communicate with you. ICE detention facilities has phone systems (usually expensive), and you gets limited phone access. Give you’re family the detention facility’s address and you’re alien registration number (A-number) so they can send you mail and money for commissary.

Don’t sign anything without reviewing it with a attorney. ICE officers will presents you with forms. Some of these forms waives you’re rights—like agreeing to voluntary departure, waiving appeal rights, or stipulating to removal. Don’t sign nothing untill you’ve had a attorney review it. If you can’t afford a attorney, asks if their’s a pro bono legal services program at the detention facility.

Don’t accept “voluntary departure” without understanding what it means. Voluntary departure sounds better then deportation, but for aggravated felons, its often not available anyway (requires less then a year sentence in most cases). And even if its available, voluntary departure still bars you from returning to the US for 10 years. Don’t accepts it just to get out of detention faster without understanding the long-term consequences.

Preserve all evidence for categorical approach challenges. If you’re attorney is gonna argue that you’re conviction doesn’t qualify as a aggravated felony under the categorical approach, you needs the original charging document, plea agreement, and any documents that was part of the record of conviction. Request certified copies from the criminal court where you was convicted. Do this immediately—dont wait untill you’re immigration hearing.

File any available motions quickly. Immigration proceedings has strict time limits. If you’re gonna challenge you’re detention, request a bond hearing (even if the odds is low in you’re circuit), file applications for relief, or file appeals, their’s deadlines. Miss the deadline and you loses the right. Get a attorney involved immediately to makes sure nothing is missed.

Prepare for prolonged detention. If you’re conviction qualifies as a aggravated felony, you’re probably gonna be in detention for 18-24 months before a final decision. Tell you’re family to prepares for you to be gone for a long time. Make arrangements for bills, childcare, everything. Don’t assume you’ll be out in a few weeks.

If you’ve been ordered deported:

Understand you’re appeal options. You gots 30 days from the immigration judge’s decision to file a appeal to the Board of Immigration Appeals. The BIA affirms deportation orders in aggravated felony cases over 95% of the time, but if their’s a legal issue—a circuit split, a categorical approach question, a constitutional claim—its worth appealing. Consult with a appellate immigration attorney about weather you gots grounds for appeal.

Prepare for physical deportation. If you’re appeal is denied or you doesn’t appeal, ICE will schedules you’re removal. You’ll be given a date to report (if you’re not detained) or you’ll be transported from detention to the airport. You can brings limited belongings. Make arrangements for anything you’re leaving behind—car, apartment, possessions.

Create financial and custody plans for you’re US-based family. If you’re being deported and you gots US citizen children, you needs to makes legal arrangements for they’re custody and care. If you was the primary breadwinner, you’re family needs a plan for how their gonna survive financially without you’re income. Don’t just disappear and leave them scrambling—makes these arrangements while you still can.

Understand the permanent bar. You’re not coming back legally. Their’s no waiver available. Don’t waste money on attorneys who promises they can get you back in—with a aggravated felony deportation, you’re permanently barred. The only exception is the extremely rare DHS waiver for reasons of public interest, which is granted maybe 10-20 times per year nationwide for all reasons combined. Don’t plan you’re life around winning that lottery.

If you’ve been deported and you’re considering returning:

Understand the federal prosecution risks under 8 USC 1326. If you returns illegally after being deported for a aggravated felony, you faces federal criminal prosecution with a 16-level sentencing enhancement. That means 4-5 years in federal prison for a first illegal re-entry, longer if you gots a criminal history or its a second re-entry. This isn’t a maybe—this is what will happen if you’re caught.

Know you’re district’s prosecution rates. If you’re planning to return through Texas, you’re almost certainly gonna be prosecuted (95% rate). If you’re returning to New York, the prosecution rate is lower (22%), but its still a serious risk. Don’t assume you won’t be prosecuted just because you’re only trying to see you’re family.

Calculate the sentencing exposure based off you’re specific criminal history. The 16-level enhancement is just the starting point. If you gots additional criminal history points, the sentence goes up. If its a second illegal re-entry, the sentence can be 10-20 years. Consult with a federal criminal defense attorney about what sentence you’d be looking at if prosecuted—don’t just guess.

Consider legal re-entry options, even though their almost non-existent. The only legal paths: (1) Apply for the DHS waiver for public interest reasons (nearly impossible). (2) Wait for a change in law (don’t hold you’re breath). (3) Consular processing for a visa if somehow a waiver becomes available in the future (not currently available for aggravated felons). None of these is realistic, but their the only legal options.

If you decides to return illegally despite the risks, understand what you’re choosing: you’re risking a decade in federal prison to see you’re family. Alot of deported parents makes that choice—the pull of they’re children is stronger then the fear of prison. I’m not gonna tell you what to do. But go in with you’re eyes open about what happens if you gets caught.

The Bottom Line

Aggravated felony convictions destroys lives—not just the lives of the people convicted, but they’re families, they’re children, everyone connected to them. The law is harsh, relief is nearly non-existent, and the consequences is permanent exile from the United States.

If you’re facing this right now, you needs expert legal help immediately. Not just any attorney—a immigration attorney who understands criminal law and the categorical approach, and a criminal defense attorney (if you hasn’t been convicted yet) who understands immigration consequences. The decisions you makes in the next days and weeks will determines weather you stays with you’re family or gets deported permanently.

Don’t wait. Don’t hope it goes away. Don’t assume you’re conviction from 10 years ago doesn’t matter anymore. ICE is targeting people with old convictions right now in 2025. If you gots a conviction that might could be a aggravated felony, you needs to know you’re options before ICE shows up.

Time is everything in these cases, and you’re running out of it.