PHAM & CLOVES, PLLC

AGGRAVATED FELONY DOES NOT INCLUDE PROBATION CASES WHERE A “SENTENCE” IS REQUIRED

By The Houston Immigration Lawyers and the Houston Immigration Attorneys at

PHAM & CLOVES, PLLC

The Illegal Immigrant Reform And Immigrant Responsibility Act of 1996 (IIRIRA) stipulates crimes that are removable (deportable) for foreign nationals, including U.S. permanent residents. Among these crimes, those that are classified as “aggravated felonies” are most serious and will deprive the foreign national from many applications and waivers, including but not exclusive to Cancellation of Removal and I-601 extreme hardship waivers.

Under immigration law, “conviction” includes an admission of guilt, such as a “guilty” or “nolo contendre” plea. However, certain crimes that are convicted in Texas that are included in IIRIRA, INA §101(a)(43), are aggravated felonies only if a “term of imprisonment” of at least one year is imposed. For example, thefts, burglaries, and or assault offenses are considered a “crimes of violence;” and as such, an imposed imprisonment of at least 1 year or more would make these convictions aggravated felonies. In these instances, a deferred adjudication is considered as no sentencing of imprisonment.

Under the Texas Code of Criminal Procedure, probations include deferred adjudications. However, deferred adjudication is not a pronouncement of sentence; and therefore, is not a “conviction.” The “pronouncement of sentence” comes only after an adjudication of guilt. Additionally, the “term of imprisonment” is not part of the Texas deferred adjudication statues. Conclusively, while a deferred adjudication is a “conviction: under immigration and naturalization law, it is not a conviction for an “aggravated felony” if INA §101(a)(43) required an imposed sentence of 1 year or more. If so, the foreign national may still be eligible for many immigration benefits, such as cancellation of removal or an extreme hardship waiver.

For more information regarding cancellation of removal, waivers, or deportation, or immigration consequences of criminal convictions, please contact our Houston Immigration Attorneys and our Houston Immigration Lawyers at PHAM & CLOVES, PLLC at 713-492-0337.