What Convictions Trigger ICE Detention and Removal?

The convictions that trigger ICE detention and removal fall into a handful of federal categories: aggravated felonies, controlled substance offenses, crimes involving moral turpitude, firearms offenses, and crimes of domestic violence. Each is defined by federal immigration law, not by how a state labels the charge, and each can result in mandatory detention the moment a non-citizen finishes a criminal sentence. Some also open the door to removal without a hearing before an immigration judge. Understanding which conviction falls into which category is often the difference between a defensible case and a deportation order.

Aggravated Felonies

The term is misleading. “Aggravated felony” in immigration law covers a long list of offenses defined under 8 U.S.C. § 1101(a)(43), and many of them are neither aggravated nor felonies under state law.¹ The list includes murder, rape, drug trafficking, firearms trafficking, money laundering above $10,000, fraud or tax evasion involving losses above $10,000, theft or burglary with a sentence of at least one year, and crimes of violence with a sentence of at least one year. The classification applies whether the underlying offense violated state or federal law.

The one-year sentence threshold catches many people off guard. A state court can call a shoplifting charge a misdemeanor, but if the judge imposes a twelve-month sentence, even one that is entirely suspended, immigration law can treat it as an aggravated felony theft offense.² The consequences are unusually severe. An aggravated felony conviction bars cancellation of removal, blocks most forms of discretionary relief, and can trigger deportation through an expedited administrative process that never reaches an immigration judge.³

Controlled Substance Offenses

Almost any conviction related to a controlled substance after admission makes a non-citizen deportable. There is one narrow exception: a single offense of possessing 30 grams or less of marijuana for personal use.⁴ Everything else triggers deportability and mandatory detention. Distribution, manufacturing, conspiracy, and possession of any other substance in any amount all qualify. Trafficking offenses also count as aggravated felonies, compounding the exposure.

This is where many people are blindsided. A first-time possession charge for a small amount of a controlled substance other than marijuana, even one treated as a minor infraction in state court, carries full deportation consequences under federal immigration law. The state-level outcome is largely irrelevant. What matters is the federal classification.

Crimes Involving Moral Turpitude

Unlike aggravated felonies, “crimes involving moral turpitude” (often abbreviated CIMT) has no statutory list. Courts have generally defined the category to cover conduct that is inherently dishonest, fraudulent, or harmful. Fraud, theft with intent to permanently deprive, and crimes involving serious physical harm typically qualify. A single CIMT conviction can make someone inadmissible under 8 U.S.C. § 1182(a)(2), and two or more CIMT convictions at any time after admission make a person deportable.

A narrow petty-offense exception exists for a single conviction where the maximum possible sentence was no more than one year and the actual sentence was no more than six months.⁵ The exception disappears when there are multiple convictions or when timing rules aren’t met.

Firearms Offenses

Firearms grounds are sweeping. Any conviction related to purchasing, selling, using, owning, possessing, or carrying a firearm or destructive device in violation of any law makes a non-citizen deportable.⁴ Virtually every offense with a firearm as an element triggers this ground. Some firearms charges, particularly trafficking or those classified as crimes of violence with a sentence of a year or more, also qualify as aggravated felonies.

Domestic Violence

A conviction for a crime of domestic violence makes a non-citizen deportable regardless of the sentence imposed. The statute defines the category broadly to include any crime of violence against a current or former spouse, cohabitant, co-parent, or anyone protected under domestic or family violence laws.⁶ Stalking, child abuse, child neglect, and violating a protective order also fall under this ground. There is no minimum sentence requirement.

Why State Labels Don’t Decide the Outcome

Immigration law sorts convictions using what’s called the categorical approach. An immigration judge doesn’t just read the charge; the judge compares the elements of the state offense to the generic federal definition of the immigration ground. If every way of committing the state offense also satisfies the federal definition, the conviction triggers consequences. If the state statute reaches conduct that would not meet the federal definition, the analysis gets more complicated.

When a state statute is broader than the federal definition but is “divisible” into alternative offenses, the judge can look at a limited set of documents called the record of conviction: the charging document, written plea agreement, plea hearing transcript, and judgment.⁷ Which subsection of the statute the person pleaded to often decides the immigration outcome. Two people convicted under the same state law can face completely different consequences depending on how the plea was papered.

Mandatory Detention and Bond

For the convictions above, ICE detention is usually not discretionary. Under 8 U.S.C. § 1226(c), the government must take a non-citizen into custody upon release from criminal incarceration, whether that release is on parole, probation, or supervised release.⁸ Mandatory detention applies to non-citizens who are:

Inadmissible for crimes involving moral turpitude or controlled substance violations under 8 U.S.C. § 1182(a)(2).
Deportable for multiple crimes involving moral turpitude, aggravated felonies, controlled substance offenses, firearms offenses, or certain domestic violence crimes.
Deportable for a single crime involving moral turpitude where the sentence was a year or more.
Inadmissible or deportable on terrorism-related grounds.

Once mandatory detention applies, bond is effectively off the table. An immigration judge has no authority to grant release based on community ties, family, or length of residence. The statute allows release only when the Attorney General decides it is necessary to protect a witness in a major criminal investigation, and even then the person must prove they pose no danger and will appear for hearings.⁸

One avenue remains open. A detained person can challenge whether their conviction actually fits within one of the mandatory detention categories. This is sometimes called a Joseph hearing, where an immigration judge compares the elements of the state offense to the federal definition. A mismatch can result in release on bond.

For non-citizens with criminal records who are not subject to mandatory detention, bond is still hard to get. The detained person carries the burden of proving they are not a danger to the community and not a flight risk.⁹ Immigration judges have wide discretion to deny bond based on the nature and recency of convictions.

How ICE Takes Custody

The bridge from local jail to federal custody is Form I-247A, the immigration detainer. The form is a request asking local law enforcement to hold a person for up to 48 hours beyond their scheduled release so ICE can take over.¹⁰ The 48-hour window excludes weekends and federal holidays, so the actual hold can be longer.¹¹

Detainers are requests, not judicial warrants. Some jurisdictions decline to honor them based on local policies, court rulings, or liability concerns. In jurisdictions that do comply, the transfer usually happens inside the 48-hour window, after which the person is processed and moved to a dedicated immigration detention facility that may be far from where the arrest happened. If ICE doesn’t pick the person up within that window, the local facility has no authority to keep holding them on the detainer alone; further detention can be challenged through a habeas corpus petition.

Removal Without a Hearing

One of the harshest consequences of an aggravated felony conviction is removal without ever appearing before an immigration judge. Under 8 U.S.C. § 1228(b), ICE can issue a final administrative removal order against a non-citizen convicted of an aggravated felony, provided the person was not a lawful permanent resident at the time proceedings began, or held only conditional permanent resident status.¹² Lawful permanent residents in good standing are not subject to this expedited track, but they still face removal proceedings in immigration court.

The process starts with a Notice of Intent (Form I-851), which sets out the charges and gives the person 10 calendar days to respond, or 13 days if served by mail.¹³ During that window the person can inspect the evidence, rebut the charges, request counsel at their own expense, and seek withholding of removal based on fear of persecution or torture. Once a final order is issued, ICE must wait 14 calendar days before carrying it out, which gives the person time to seek review in federal court.¹² People subject to administrative removal are not eligible for any discretionary relief from removal.

Even outside this expedited track, an aggravated felony blocks most defenses. Cancellation of removal is categorically unavailable, and asylum, voluntary departure, and most waivers are barred or severely restricted.³ The realistic defenses are challenging whether the conviction actually qualifies as an aggravated felony under the categorical approach, or attacking the conviction itself in criminal court.

What Can Still Be Done

Immigration law draws a sharp line between convictions vacated for legal defects and those cleared for rehabilitative or immigration-related reasons. A conviction stops counting for immigration purposes if it was vacated because of constitutional or statutory defects, or errors in the criminal proceedings that affected the finding of guilt.¹⁴ A conviction vacated because the criminal court failed to warn the defendant of immigration consequences fits in the same category, because that failure is a defect in the original proceeding.

By contrast, a conviction dismissed after completion of a rehabilitation program, or vacated solely to avoid immigration consequences without any underlying legal defect, still counts as a conviction.¹⁴ State-level expungements generally do not erase a conviction for federal immigration purposes either. Immigration law has its own definition of conviction that operates independently of state record-sealing procedures.

The 2010 Supreme Court decision in Padilla v. Kentucky is the key tool for challenging older pleas. The Court held that defense attorneys have a constitutional obligation to advise non-citizen clients whether a guilty plea carries a risk of deportation.¹⁵ If a defense lawyer failed to give that warning, the plea may be vulnerable to a post-conviction challenge for ineffective assistance of counsel. A successful Padilla claim can vacate the conviction and remove it as a basis for immigration consequences.

One structural point matters throughout. Unlike criminal defendants, people in removal proceedings have no right to a government-appointed attorney. Federal law permits representation by counsel, but at no expense to the government.¹² The government is always represented; the non-citizen may not be. Assembling the record of conviction, running the categorical analysis, challenging mandatory detention, and pursuing post-conviction relief all require legal help, whether through a pro bono organization, legal aid program, or private counsel. For anyone facing removal based on a conviction, finding that help is the single most consequential step in the case.

1
Office of the Law Revision Counsel. 8 USC 1101 – Definitions
2
U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 12 Part F Chapter 4 – Permanent Bars to Good Moral Character
3
Office of the Law Revision Counsel. 8 USC 1229b – Cancellation of Removal; Adjustment of Status
4
Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
5
Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
6
Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
7
eCFR. 8 CFR 1003.41 – Evidence of Criminal Conviction
8
Office of the Law Revision Counsel. 8 USC 1226 – Apprehension and Detention of Aliens
9
Department of Justice. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006)
10
U.S. Immigration and Customs Enforcement. DHS Form I-247A – Immigration Detainer – Notice of Action
11
U.S. Immigration and Customs Enforcement. Immigration Detainer Form
12
Office of the Law Revision Counsel. 8 USC 1228 – Expedited Removal of Aliens Convicted of Aggravated Felonies
13
eCFR. 8 CFR 238.1 – Proceedings Under Section 238(b) of the Act
14
U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 12 Part F Chapter 2 – Adjudicative Factors
15
Justia. Padilla v Kentucky, 559 US 356 (2010)