Can a misdemeanor be an aggravated felony for immigration purposes?

What is an aggravated felony for immigration purposes and can a misdemeanor be classified as an aggravated felony?

The Chief Judge Becker of the US Court of Appeals for the Third Circuit stated in USA vs. Graham:

This case requires us to determine whether a misdemeanor can be an “aggravated felony” under a provision of federal law even if it is not, technically speaking, a felony at all. The particular question before us is whether petit larceny, a class A misdemeanor under New York law that carries a maximum sentence of one year, can subject a federal defendant to the extreme sanctions imposed by the “aggravated felon” classification. Despite our misgivings that, in pursuit of a clearly defined legislative goal (to severely punish unlawful reentry into this country), a carelessly drafted piece of legislation has improvidently, if not inadvertently, broken the historic line of division between felonies and misdemeanors, we conclude that Congress was sufficiently clear in its intent to include certain crimes with one-year sentences in the definition of “aggravated felony”…

Basically, Chief Judge Becker ruled although the crime maybe classified as a class A misdemeanor under New York law it is an aggravated felony for immigration purposes and until Congress changes the definition of aggravated felony it will continue to have a broad sweeping definitions that turns some misdemeanor into agggravated felonies for immigration purposes.


In 1996, Congress expanded the definition and type of offense considered an “aggravated felony” in the immigration context. [2] The offenses require a minimum term of imprisonment of 12 months to qualify as an aggravated felony in the immigration context. The term of imprisonment is the period of confinement ordered by the court regardless of whether the court suspended the sentence. [5] For example, an offense involving theft or a crime of violence is considered an aggravated felony if the term of imprisonment ordered by the court is one year or more, even if the court suspended the entire sentence. [6]

An applicant who has been convicted of an “aggravated felony” on or after November 29, 1990, is permanently barred from establishing good moral character (“GMC”) for naturalization. [3]  

Most often people forget that Crime Involving Moral Turpitude can have an adverse effect on your immigration status or delay your filing for naturalization.

While an applicant who has been convicted of an aggravated felony prior to November 29, 1990, is not permanently barred from naturalization, the officer should consider the seriousness of the underlying offense (aggravated felony) along with the applicant’s present moral character in determining whether the applicant meets the GMC requirement. If the applicant’s actions during the statutory period do not reflect a reform of his or her character, then the applicant may not be able to establish GMC. [4]


USA vs. Graham