CRIMINAL CONVICTIONS IN THE IMMIGRATION CONTEXT: WHAT YOU DON'T KNOW MIGHT HURT YOU

"Conviction" is Defined More Broadly Under Immigration Law

Non-citizens, including lawful permanent residents, may face severe immigration consequences if they are convicted of certain crimes, including offenses that are deemed relatively minor and carry minimal penalties. Moreover, the term "conviction" is defined more broadly under immigration law than under criminal law. For example, did you know that if you plead guilty to a charge and the judge orders a form of punishment, you are considered "convicted" for immigration purposes, even if adjudication was stayed and the case is later dismissed? Did you know that even if your criminal case is expunged, you must disclose the offense on immigration applications, which the adjudications officer might consider in deciding your case? Did you know that a dismissed case could still be a "conviction" under immigration law unless the case was dismissed on the merits or the government failed to prosecute the case? And did you know that certain convictions make you inadmissible, removable, or ineligible for some immigration benefits, including naturalization?

Under immigration law, a "conviction" exists:
1. When a court enters a formal judgment of guilt; or
2. If adjudication of guilt is withheld, when a judge or jury finds the person guilty or the person enters a guilty plea or nolo contendere, or admits sufficient facts to warrant a finding of guilt, and the judge orders some form of punishment, penalty, or restraint on liberty (e.g. fine, probation, community service or alcohol awareness classes).

As a result, the mere fact that you have no convictions under criminal law does not necessarily mean you have no convictions under immigration law. In the criminal sense, a person is not convicted if he pleads guilty, pays a fine, completes probation, and then has the charge dismissed after he meets the conditions. But in the immigration context, a conviction would still exist in this same scenario. The foreign national's guilty plea, no-contest plea or admission of certain facts is considered a conviction even if he satisfies the conditions imposed and the charges are ultimately dismissed.

Immigration Consequences of Convictions

Criminal convictions often have devastating consequences on a foreign national's status in the United States and eligibility to become a naturalized U.S. citizen. Non-citizens could be found removable if they were convicted of aggravated felony, domestic violence, firearm or destructive device offense, controlled substance offense (except for a single offense of simple possession of 30 grams or less of marijuana), two crimes of moral turpitude, or one crime of moral turpitude within the last five years of being admitted to the U.S. and for which a sentence of one year or more may be imposed. They could also be deemed inadmissible when applying for entry into the U.S. if they were convicted of a controlled substance offense (except for a single offense of simple possession of 30 grams or less of marijuana), crime of moral turpitude, prostitution and commercialized vice, or two or more offenses of any type for which an aggregate sentence of five years or more may be imposed.

In addition, foreign nationals often discover that their criminal history makes it harder or impossible for them to prove good moral character, which is necessary to become a citizen. A person cannot be found to have good moral character if, during the statutory period (three or five years prior to filing for naturalization), he was convicted of one or more crimes of moral turpitude, convicted of any controlled substance law, or convicted of two or more gambling offenses, for example. Not all convictions in the immigration sense, however, bar foreign nationals from becoming citizens. While grave offenses like murder are automatic bars to obtaining citizenship, less severe offenses like traffic violations do not usually have the same effect.

What to Do Following An Arrest or Charge

Plea bargaining is a necessary part of the criminal justice system, especially because resources are limited and it allows for quicker disposition of criminal cases. Through plea bargaining, the defendant agrees to meet certain conditions like pay a fine or engage in community service, in exchange for a dismissal of the charges or a withholding of adjudication. Although this approach usually allows the defendant to erase his conviction under criminal law if he meets the terms of probation and other requirements, it could lead to devastating immigration consequences if he is not a citizen. Convictions often come back to haunt foreign nationals long after they have met conditions and their case has been dismissed.

Some criminal defense attorneys do not realize that plea agreements for even fairly minor crimes could cause the foreign national to be removed from the U.S. or be denied admission to the U.S. While entering guilty pleas or other plea agreements are often beneficial for citizens, they might not be for non-citizens. As such, criminal defense attorneys should consider the immigration ramifications or consult with immigration counsel when advising non-citizen defendants.

Not all convictions carry immigration consequences, but many do. Because of the complexity of immigration law, the best-case scenario is to have no criminal history at all. Short of that, foreign nationals should make sure they know the immigration consequences of a conviction before entering a potentially life-altering plea agreement or admitting certain facts. Following an arrest or charge, they should work with a criminal defense attorney who understands the immigration consequences, consult with knowledgeable immigration counsel, and/or request that their criminal attorney and immigration attorney coordinate with each other. These steps will enable foreign nationals to obtain the next best scenario to having no criminal history at all.

Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.