When you are an immigrant facing criminal charges, you have to be careful, especially when deciding whether to plead guilty or plead no contest. While these pleas might seem like an immediate solution, they can significantly affect your immigration status and result in lasting effects. Both guilty and no contest pleas are treated as convictions under U.S. immigration law, resulting in deportation, denial from reentering the country, or denial of future citizenship. This includes all immigrants, people with visas, green cards, or pending applications for lawful status. If the crime involves aggravated felonies, crimes of moral turpitude, or drug-related offenses, the consequences are especially severe.
Minor criminal convictions can work against you and keep you from remaining in the United States. Immigration laws are strict, and there is no such thing as a minor offense. A conviction will trigger removal proceedings. Once the deportation process starts, you will lose your ability to maintain legal status, reenter the country, or become a citizen again. With these risks, you must consult your criminal defense lawyer and an immigration attorney before entering a plea. They can help you assess the potential consequences and direct you toward a legal strategy that keeps your immigration status safe. Read on to better understand the impact convictions have on your immigration status.
How Arrests, Dropped, or Dismissed Cases Affect Your Immigration Case
No matter how a state or local court labels the outcome, a conviction affects your immigration status under U.S. immigration law. The Immigration and Nationality Act (INA) defines a conviction as a court finding you guilty or when you plead guilty or nolo contendere (no contest).
If you plead guilty to a crime, you admit you did what you were charged with. What follows is a quick conviction and sentence and a fast closing of the door to any possibility of contesting the charges later. However, a plea like this can tremendously affect your criminal record, job opportunities, and immigration status. A no-contest plea means not contesting the charges. However, you will still get convicted. The main difference is that a nolo contendere plea cannot be used against you in any subsequent civil lawsuit that may arise from the incident. Despite this advantage, a no-contest plea has the same legal consequences, including a conviction, sentencing, and repercussions for your criminal history.
As a result, seemingly minor outcomes can have serious repercussions for your immigration status.
When you plead guilty or no contest, the conviction will be valid under immigration law. Even if your sentence was suspended, where you await being sentenced to jail, or you are on probation, where you do not serve a jail sentence, both result from convictions. Under immigration law, that counts as a conviction, too. If you have a condition or restriction on your freedom, then it is a penalty that confirms the conviction in the eyes of immigration authorities.
Deferred adjudication and pre-plea diversion programs complicate convictions and immigration status. In a deferred adjudication case, you plead guilty or no contest, and the court defers entering a conviction judgment after completing probation or other conditions. If you successfully meet these requirements, the court will dismiss the charges, but because you entered a plea, immigration authorities will still consider it a conviction.
On the other hand, pre-plea diversion programs enable you to avoid making a formal plea of guilty or no contest at the outset. Most programs require you to finish specific conditions, like community service or treatment. The charges may be dismissed if you complete the program successfully. Because there was no plea, it will be less likely to be considered a conviction under U.S. immigration law. This is important because it helps prevent any potential immigration consequences for those who complete these programs.
Can a Juvenile Conviction Impact an Immigration Case?
U.S. law typically does not interfere with your immigration status with juvenile convictions. The juvenile justice system's goal is rehabilitation rather than punishment, so this reflects it. Therefore, most juvenile records are not available to immigration authorities. However, that changes when you are charged as an adult, even if you were under 18 when the offense happened.
In California and many other jurisdictions, state laws permit prosecutors to transfer juvenile cases to adult court. This transfer can happen through judicial waivers, prosecutorial discretion, or legislative exclusion, automatically assigning adult charges to particular offenses, regardless of age. In California, as in many places, a minor can be charged as an adult for serious crimes, like murder or some sexual offenses. If you are charged as an adult, you must follow the adult criminal procedure, and your conviction is as serious as any adult offender's conviction.
Adult convictions can result in dire consequences for you as an immigrant. Many crimes can trigger deportation proceedings or make you ineligible for certain immigration benefits. For example, an offense that would qualify as an aggravated felony under immigration law is subject to mandatory detention and removal. Immigration authorities can quickly uncover adult convictions after conducting background checks, making it harder for you to apply for visas, green cards, or citizenship.
The Impact of Expunged Convictions on Immigration Status
A sealed or expunged conviction removes or limits public access to your record. When the court seals a conviction, the record is hidden from public view, but there are some exceptions to this rule. Government entities and permissible exceptions to the rule of law allow access. On the other hand, expungement typically means the conviction does not even stay on your criminal record at all. States differ on the process of sealing or expunging a conviction. Nevertheless, the criteria hinge on factors ranging from whether you reoffended after the conviction to the nature of the offense and even a range of legal requirements.
There are several reasons you might choose to seal or expunge your conviction. Most importantly, it is to improve your employment prospects. Background checks are standard with many employers, and having a criminal record can reduce your prospects of getting work. Sealing or expunging your conviction allows you to present yourself as a better candidate, free of the stigma of a past mistake.
Another reason for this option is to improve your personal and social opportunities. A criminal record can affect your ability to rent housing, get loans, or volunteer. Sealing or expunging your conviction gives you back privacy and allows you to move on without the stigma associated with a criminal record. A criminal conviction can also have emotional weight. Having a record is often stigmatized, resulting in feelings of shame and isolation. Choosing to seal or expunge your record means you are taking a proactive step towards personal healing and reintegration into society so you can get on with building a brighter future.
Despite the potential benefits of sealing or expunging your conviction, the benefits do not translate to your immigration case. The conviction can still affect your immigration status. Expunged convictions are deemed valid by the U.S. Department of Homeland Security and can result in deportation or other immigration consequences.
How Vacating a Conviction Can Impact Your Immigration Case
A conviction is vacated when a court nullifies your conviction as if it never happened. Vacating a conviction acknowledges that something went wrong in your case, often because constitutional rights were violated. When a court vacates your conviction, it removes the penalties and restrictions that come with it. However, your arrest or original charge may still be on your record, depending on the crime you were charged with.
The most common ground for vacating a conviction is ineffective assistance of counsel. If your attorney failed to provide you adequate representation, for example, not telling you about all the consequences of pleading guilty or making significant strategy mistakes in your trial, this could compromise the fairness of your trial. Other reasons for vacating a conviction include:
- New evidence that would change the outcome
- Prosecutorial misconduct
- Procedural errors that tainted the fairness of a trial
Vacating a conviction is of particular importance in immigration matters. It can even wipe the legal basis for deportation or other immigration consequences from your criminal record. After a conviction is vacated, it no longer provides grounds for removal proceedings.
The legal basis for vacating convictions to undo immigration consequences is that a conviction should be vacated where it results from constitutional violations. Several critical cases and legal provisions have paved the way for this process, specifically:
The Padilla v. Kentucky Case
The Padilla v. Kentucky 2010 decision set a right to effective legal representation, including its immigration consequences. It was a critical precedent. In this case, José Padilla, a lawful U.S. resident convicted of drug charges in Kentucky, faced deportation after pleading guilty. Not only did his attorney fail to inform him of the risk of deportation, but his attorney also reassured him incorrectly that his long-term residency would protect him.
The Supreme Court ruled that the failure violated Padilla’s Sixth Amendment right to effective counsel. The court held that deportation is a direct consequence of a criminal conviction. It is not just a collateral issue. In light of this, defense attorneys must properly advise non-citizen clients of the immigration risks of accepting a plea. If an attorney does not provide correct or complete information about those risks, that is ineffective assistance of counsel.
This ruling allows you to challenge a conviction due to your attorney’s failure to inform you of the immigration consequences associated with your plea.
The Moncrieffe v. Holder Case
In the Moncrieffe v. Holder case of 2103, the Supreme Court reshaped how some drug convictions affect your immigration status. Adrian Moncrieffe, a lawful permanent resident, was convicted in Georgia for possessing a small amount of marijuana with intent to distribute and then faced deportation. The state considered this to be a minor offense, but immigration authorities saw it as an aggravated felony, meaning he would have been automatically deported.
However, the Supreme Court ruled in Moncrieffe's favor. The justices ruled that his offense did not constitute an aggravated felony under federal law. Georgia’s law was too broad. It covered conduct that could be treated as either a misdemeanor or a felony. The Court held that only felony offenses under federal law could trigger automatic deportation.
Pardons and Immigration
A pardon offers an excellent opportunity to mitigate a criminal conviction. A pardon is an official act of forgiveness that, at the state and federal level, helps to restore your civil rights and relieve the long-term effects of a conviction. However, the way to get a pardon is quite different in state and federal jurisdictions.
Grants of pardon are usually made at the state level by the governor or by a designated pardon board. The eligibility rules and requirements are different for each state. Most states allow a state pardon for crimes like drug offenses or theft, and while a state pardon does not erase a conviction from your record, it does restore some rights, such as:
- Voting
- Owning a gun
- Serving on a jury
However, a state pardon can also help your chances of getting employment by showing that you have done something to rehabilitate yourself. If you have served a sentence and have a good record of rehabilitation, you can get a pardon in states like California, where the governor may do so years after your sentence. A state pardon might even help keep you from being deported if your conviction is what is causing your removal proceedings.
However, the President is the one to issue federal pardons, but they are only given in cases of federal crimes, including tax evasion or immigration fraud. A federal pardon can restore some rights and ease some of the long-lasting effects of the conviction while the conviction is still on your record. You must formally request the Office of the Pardon Attorney and show rehabilitation and an overwhelming reason for pursuing clemency. While less common, federal pardons can bring life-changing relief to those convicted of federal offenses.
If you are granted a pardon for a deportable offense, you might not be deported. A pardon means to forgive the criminal offense and remove the grounds for deportation based on that conviction.
For example, if you have been convicted of an aggravated felony, which generally makes you deportable, a pardon from the proper authority (state or federal) would clear the conviction as the ground for your removal from the country. It can be a massive relief for lawful permanent residents facing deportation due to some criminal convictions. After being pardoned, the conviction no longer triggers deportation for the offense.
However, not all convictions are pardonable. A pardon does not mean you will never be deported. Even if pardoned, some offenses, particularly those related to terrorism or espionage, can still result in removal.
Effects of Arrests Without Conviction on Your Immigration Case
It might not seem like much, but an arrest without it ever resulting in charges and convictions can significantly impact your immigration status. U.S. immigration officials, including those from USCIS (United States Citizenship and Immigration Services) and ICE (Immigration and Customs Enforcement), look at arrest records, regardless of whether they result in a conviction. Moral character is critically evaluated, and your moral character is a critical factor in whether or not you are eligible for benefits like permanent residency, naturalization, or discretionary relief.
Find a California Immigration Attorney Near Me
Pleading guilty or no contest is difficult, as it more or less admits guilt for the crime, which can be used as grounds for your removal. Candidates for U.S. citizenship and the immigration process insist on good moral character and strong values, both essential for citizenship. If you admit guilt, you are putting yourself at a disadvantage because this shows you lack moral character. This will directly affect your ability to receive immigration benefits. This admission of guilt will affect not only your criminal case but your immigration case as well. A guilty plea can hurt your moral character, which authorities will look into as part of your candidacy for citizenship. It is a failure to abide by the values expected of future citizens and could interfere with your legal path to lawful status or naturalization.
A guilty plea also makes life more difficult for you legally. It can result in removal proceedings, and once the process starts, the plea may bar you from challenging your removal or getting a waiver. You may have fewer legal options if you want to build a secure future in the country.
Before entering a plea, you must speak with an experienced immigration attorney. At California Immigration Attorney, we will explain to you how your decision may affect your immigration status and will help you understand what alternatives could help you protect your rights. Getting legal advice early means you can make informed decisions about your immediate interests and longer-term goals and have the best chance of staying in the country. Therefore, call us today at 424-789-8809 for more information and help with your case.