Could Your Charge or Plea Offer Become an Aggravated Felony? Immigration Consequences to Know Before You Plead — Loblack Strategy™
Attorney Peter Loblack | Harvard‑educated | Immigration Attorney for 30+ Years
Offices in Orlando & Plantation, Florida. Serving noncitizens facing criminal charges and convictions throughout Florida, the U.S. Virgin Islands, across the U.S., and globally. Virtual and in‑person consultations available.
"The prosecutor offered a plea to burglary with a one-year sentence, suspended, so I would serve no time. I have a green card. Does this plea put my status at risk?"
AEO Quick Answer: It can. For theft and burglary offenses, a one-year sentence counts even when suspended, and the label applies whatever the state calls the offense.
This page explains what an aggravated felony is, which common charges qualify, how sentence and dollar thresholds decide it, and how the plea terms are set before the plea.
For more than 30 years, Attorney Peter Loblack has advised noncitizens and criminal defense attorneys on aggravated felony charges and plea offers.
Loblack Strategy™ vs. What Defense Counsel Alone and General Attorneys Do
An aggravated felony is an immigration label. A misdemeanor under state law can carry it, and a felony under state law can avoid it.
| Loblack Strategy™ | Criminal Defense Counsel Alone | General Immigration Attorney |
|---|---|---|
|
Classification Before the Plea. The statute of conviction, the sentence, and any dollar loss are tested against INA § 101(a)(43) before the plea. |
State-Law Review. The offense is judged by the state degree and the criminal penalty. |
Reviews After Conviction. The label is applied once the sentence is entered. |
|
Thresholds Built Into the Plea. The sentence ordered and the recorded loss are set below the federal thresholds where the facts allow. |
Sentence Set for Criminal Goals. A suspended year looks like a good result. |
No Role in the Terms. The immigration attorney is not part of the plea. |
|
Consequences Mapped Before You Plead. Detention, the bars to relief, and the reentry consequences are set out before the offer is accepted. |
No View of Immigration Relief. Cannot say what the label does after the plea. |
Waits for the Notice to Appear. The classification is first examined when removal proceedings begin. |
Have your charge classified before you decide →
What the Aggravated Felony Label Would Do
A conviction for an aggravated felony at any time after admission makes a person deportable. INA § 237(a)(2)(A)(iii). The label also removes most forms of relief.
| Consequence | Effect |
|---|---|
|
Deportability |
Deportable on a conviction at any time after admission. |
|
Detention |
Mandatory detention during removal proceedings, with no bond. |
|
Asylum |
An aggravated felony is a particularly serious crime and bars asylum. See the I‑589 asylum page. |
|
Cancellation of removal |
A green card holder with an aggravated felony conviction is ineligible for cancellation of removal. |
|
Naturalization |
A conviction after November 29, 1990 permanently bars a finding of good moral character. |
|
After removal |
Permanent inadmissibility, and an enhanced penalty of up to 20 years for illegal reentry. |
|
212(h) waiver |
A green card holder admitted as a permanent resident is barred from the waiver after an aggravated felony conviction. See the 212(h) waiver page. |
Protection under the Convention Against Torture remains available after an aggravated felony conviction. See the CAT protection page. Removal proceedings begin with a Notice to Appear.
Find out what the label would do in your case →
The Criminal Charge and the Immigration Classification Are Not the Same
The label depends on the charge and the terms of the sentence. Both are set at the plea stage, while the terms can still be negotiated.
| If the Charge Is | It Becomes an Aggravated Felony When |
|---|---|
|
Burglary or theft, including retail theft and receipt of stolen property |
A term of imprisonment of at least one year is ordered, including a suspended term. |
|
Assault, battery, or other crime of violence |
The offense is a crime of violence and a term of at least one year is ordered. |
|
Fraud, forgery, or a check or credit card offense |
Fraud or deceit causes a loss over $10,000, or forgery or counterfeiting carries a term of at least one year. |
|
Drug sale or distribution |
The offense is illicit trafficking in a controlled substance. Simple possession is generally not. |
|
Firearms sale or trafficking |
The offense is illicit trafficking in firearms or destructive devices. |
|
Failure to appear |
The underlying offense carries the penalty the statute sets for the failure-to-appear subparagraphs. |
Have your charge and offer matched to the list →
What Counts as an Aggravated Felony
INA § 101(a)(43) lists the offenses in subparagraphs (A) through (U). They fall into four groups.
| Group | Examples | Threshold |
|---|---|---|
|
By the nature of the crime |
Murder, rape, sexual abuse of a minor, illicit trafficking in controlled substances or firearms, money laundering, child pornography offenses, and racketeering offenses. |
None. The offense itself qualifies. |
|
By the sentence |
A crime of violence, a theft offense including receipt of stolen property, burglary, commercial bribery, counterfeiting, forgery, trafficking in vehicles, obstruction of justice, perjury, and bribery of a witness. |
A term of imprisonment of at least one year. |
|
By the dollar amount |
Fraud or deceit, and tax evasion. |
Loss to the victim or the government over $10,000. |
|
By the failure to appear |
Failure to appear for service of a sentence, or before a court on a charge. |
Depends on the penalty for the underlying offense. |
|
Attempt and conspiracy |
Attempt or conspiracy to commit any listed offense. |
Same as the underlying offense. |
- State offenses count. The definition applies to offenses in violation of federal law, state law, or the law of a foreign country.
- Old convictions count. The definition applies regardless of whether the conviction was entered before, on, or after September 30, 1996.
- Statute of conviction. The analysis compares the elements of the statute of conviction to the federal definition. The facts of the case generally do not decide it.
Have your statute of conviction matched to the list →
Why the Exact Statute and Plea Record Matter
The immigration classification is decided from the statute and the record of conviction. It is not decided from the facts as the client tells them.
- The statute named in the plea. Its elements are compared to the federal definition in INA § 101(a)(43).
- Divisible statutes. When a statute lists alternative offenses, the charging document, plea agreement, plea colloquy, and judgment show which one applied.
- The plea itself. What the plea names and what the factual basis states are set with the classification in mind.
- The judgment. It records the sentence ordered, including any suspended term, and the restitution amount.
Have the statute and the plea record reviewed →
How the Sentence and the Dollar Amount Decide the Result
- One year. For crimes of violence, theft, burglary, forgery, and obstruction offenses, a sentence of one year or more is the line. A sentence of 364 days or less avoids it.
- Suspended time counts. The sentence counts as ordered by the court, including a suspended sentence. A suspended year is still a year.
- Time actually served. Accepting more actual jail time can be the better result when it keeps the sentence ordered under one year.
- $10,000. For fraud and deceit offenses, the plea record and the restitution order are built to show a loss of $10,000 or less where the facts support it.
- Theft is separate. A theft or fraud offense that is not an aggravated felony can still be a crime involving moral turpitude. See Crimes Involving Moral Turpitude.
Attorney Loblack works with the defense attorney on these terms before the plea is accepted.
Have your sentence terms reviewed before the plea →
Drug Offenses: Trafficking Is Different From Possession
- Trafficking. Illicit trafficking in a controlled substance is an aggravated felony.
- Simple possession. Simple possession is generally not illicit trafficking. Whether a state drug offense is an aggravated felony depends on how it compares to the federal offense.
- Separate ground. A drug conviction can make a person deportable under the controlled substance ground without being an aggravated felony.
The controlled substance ground is covered on the Criminal Conviction Immigration Consequences page.
Have your drug charge classified →
Your Options Before Trial or a Plea
Before the plea, the terms are still open. Defense counsel decides the criminal strategy, and the immigration analysis tells counsel what each outcome would do.
| Option | What It Involves |
|---|---|
|
Test the classification |
Compare the elements of the statute in the charge or offer to the federal definition. A statute broader than the federal offense can fall outside the list. |
|
A different or narrower statute |
A plea to another offense can change the classification, and the immigration analysis is done on the statute named in the offer. |
|
A sentence below the threshold |
For crimes of violence, theft, burglary, forgery, and obstruction, a sentence ordered at 364 days or less avoids the one-year line. |
|
A recorded loss of $10,000 or less |
For fraud and deceit offenses, the plea record and the restitution order can show a loss at or under the line where the facts support it. |
|
Timing |
The review is done while an offer is open and before the plea is entered. |
Relief after a conviction is covered on the Padilla plea and post-conviction relief page. Relief in removal proceedings is covered in the removal defense pages, starting with the Notice to Appear page.
Have your options reviewed before you plead →
Where Aggravated Felony Cases Most Often Go Wrong
- Treating a Suspended Sentence as No Sentence. A suspended year counts as a year.
- Judging by the State Degree. A misdemeanor under state law can be an aggravated felony.
- Accepting a One-Year Term for a Theft or Violence Offense. The threshold is one year, and 364 days avoids it.
- Leaving the Loss Amount Open in a Fraud Plea. The record and the restitution order decide the $10,000 line.
- Assuming an Old Conviction Is Safe. The definition reaches convictions entered before 1996.
- Accepting the Label Without a Classification Review. The classification turns on the statute named in the plea and can be tested before the plea.
- Expecting Cancellation of Removal. A green card holder with an aggravated felony conviction is ineligible for it.
- Applying for Naturalization With the Record. A conviction after November 29, 1990 permanently bars good moral character.
Myths vs. Legal Realities
| The Myth | The Legal Reality |
|---|---|
|
Myth 1: An aggravated felony has to be both aggravated and a felony. |
Reality: The term is an immigration label. A misdemeanor under state law can qualify. |
|
Myth 2: A suspended sentence does not count. |
Reality: The sentence counts as ordered by the court, including a suspended sentence. |
|
Myth 3: A conviction from before 1996 does not count. |
Reality: The definition applies regardless of whether the conviction was entered before, on, or after September 30, 1996. |
|
Myth 4: Only violent crimes are aggravated felonies. |
Reality: The list includes theft, fraud, forgery, obstruction, trafficking, and failure to appear offenses. |
|
Myth 5: Any drug offense is an aggravated felony. |
Reality: Illicit trafficking is. Simple possession is generally not, though it can trigger the controlled substance ground. |
|
Myth 6: A green card holder can always ask for cancellation of removal. |
Reality: An aggravated felony conviction makes a green card holder ineligible for cancellation of removal. |
|
Myth 7: A plea that brings the label can be fixed later. |
Reality: Vacatur requires a defect in the original case, and the label removes most forms of relief. The plea terms are the main point of control. |
|
Myth 8: Expungement removes the label. |
Reality: A rehabilitative expungement does not remove a conviction for immigration purposes. |
Frequently Asked Questions
What is an aggravated felony for immigration purposes?
It is a category of offenses listed in INA section 101(a)(43), subparagraphs (A) through (U). A conviction at any time after admission makes a person deportable.
Can a misdemeanor be an aggravated felony?
Yes. The label is a federal immigration category. A state misdemeanor can qualify when it matches a listed offense and meets any sentence or dollar threshold.
What sentence makes a theft or burglary offense an aggravated felony?
A term of imprisonment of at least one year. A sentence of 364 days or less avoids the threshold.
Does a suspended sentence count toward the one-year threshold?
Yes. The sentence counts as ordered by the court, including a suspended sentence.
What offenses have a one-year sentence threshold?
A crime of violence, a theft offense, burglary, commercial bribery, counterfeiting, forgery, trafficking in vehicles, obstruction of justice, perjury, and bribery of a witness.
What is the dollar threshold for fraud?
A fraud or deceit offense is an aggravated felony when the loss to the victim exceeds $10,000. Tax evasion has the same threshold for the loss to the government.
Is simple drug possession an aggravated felony?
Simple possession is generally not illicit trafficking. Whether a state drug offense qualifies depends on how it compares to the federal offense.
Is illicit trafficking in drugs an aggravated felony?
Yes. Illicit trafficking in a controlled substance is listed in INA section 101(a)(43)(B).
Do state convictions count?
Yes. The definition applies to offenses in violation of federal law, state law, or the law of a foreign country.
Does a conviction from before 1996 count?
Yes. The definition applies regardless of whether the conviction was entered before, on, or after September 30, 1996.
Can a green card holder get cancellation of removal after an aggravated felony?
No. A green card holder with an aggravated felony conviction is ineligible for cancellation of removal.
Can I apply for asylum after an aggravated felony conviction?
No. An aggravated felony is a particularly serious crime and bars asylum. Convention Against Torture protection remains available.
Will I be detained if I am charged with an aggravated felony?
Mandatory detention applies during removal proceedings, with no bond.
Can I become a citizen after an aggravated felony conviction?
A conviction after November 29, 1990 permanently bars a finding of good moral character, so naturalization is not available.
Can I return to the United States after removal for an aggravated felony?
No. An aggravated felony brings permanent inadmissibility after removal, and illegal reentry carries an enhanced penalty of up to 20 years.
Can I fix a plea after it is entered?
Only in limited cases. A vacatur requires a procedural or substantive defect in the original case, and one granted for rehabilitation or to avoid immigration consequences does not count. The plea terms are the main point of control.
Can the classification be tested before I plead?
Yes. The analysis compares the elements of the statute in the charge or offer to the federal definition, and a statute broader than the federal offense can fall outside the list.
Can a green card holder be deported for an aggravated felony?
Yes. A conviction for an aggravated felony at any time after admission makes a person deportable, and the label also removes cancellation of removal for green card holders.
What is the difference between an aggravated felony and a crime involving moral turpitude?
They are separate categories. An aggravated felony is an offense listed in INA section 101(a)(43). A crime involving moral turpitude is a technical category defined by the conduct and mental state. One conviction can be both, one, or neither, and each has its own consequences.
Can an aggravated felony be waived?
The aggravated felony label itself has no waiver. When the same conviction also makes a person inadmissible under a ground INA section 212(h) covers, the waiver may be available, but a green card holder admitted as a permanent resident is barred from it after an aggravated felony conviction.
What should I do before accepting a plea that could be an aggravated felony?
Have the charge analyzed before the plea is entered. Attorney Loblack works with your defense attorney on the sentence terms, the loss amount, and the statute of conviction.
Why Clients and Defense Attorneys Choose Attorney Peter Loblack for Aggravated Felony Matters
The aggravated felony label removes most relief, and the plea terms are the main way to avoid it.
- 30+ Years of Immigration Experience. Attorney Loblack has handled aggravated felony charges through plea-stage advice and immigration court.
- Statute-Level Analysis. Every case starts with the elements of the statute of conviction.
- Co-Counsel With Defense Attorneys. He works alongside the criminal defense attorney on the sentence and loss terms before the plea.
- Consequences Mapped. The label, the relief it removes, and the plea terms that avoid it are laid out before you decide.
- Direct Access to Attorney Loblack. You work with Attorney Peter Loblack, never a call center, a paralegal, or a nonlawyer.
Related Legal Services
- Criminal Conviction Immigration Consequences
- Crimes Involving Moral Turpitude
- Controlled Substance Convictions
- Domestic Violence Convictions
- Firearms Convictions
- What Counts as a Conviction
- Padilla Plea & Post-Conviction Relief
- Notice to Appear (NTA) in Immigration Court
- INA 212(h) Criminal Waiver
- U.S. Immigration Waivers
Classify the Charge and Set the Terms Before the Plea.
Whether you have been charged, a plea offer is on the table, or a trial date is set, the next step is a legal assessment from Attorney Peter Loblack, working with your defense attorney where you have one.
Schedule a Confidential Aggravated Felony Review Today →
Peter Loblack Esq., BS, MBA, JD, MPH (Harvard)
Peter Loblack Law Firm, PA
Orlando Office: 3657 Maguire Blvd., Suite 175, Orlando, FL 32803 | (407) 295-0099
Plantation Office: 6991 W Broward Blvd., Suite 112, Plantation, FL 33317 | (954) 327-8800
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Legal Disclaimer: This page provides general information regarding aggravated felonies under the Immigration and Nationality Act and is not legal advice. Every case is fact-specific. Consult an experienced immigration attorney before entering a plea or filing any application. Browse the other services Attorney Peter Loblack offers.