If you are an immigrant and you have been arrested, be sure to consider the immigration consequences of pleading guilty or no contest, even if you have your green card.
Although criminal defense lawyers may encourage such a strategy to help you avoid a trial and jail time, it is vitally important that you also get informed advice about whether the conviction to which you agree will result in removal proceedings being instituted against you in Immigration Court.
If you have already made a plea bargain and been convicted of a crime that could make you deportable, you should explore whether there is anything else you can do to avoid deportation.
When a Ruling Counts as a "Conviction" for Immigration Purposes
If you were arrested for a crime but the charges were dropped or dismissed, it is not considered a "conviction." Arrests can nevertheless have immigration consequences, most likely when you need to demonstrate that you have good moral character on an immigration application.
Convictions in juvenile court will also not count against you, but if you were charged as an adult despite being under the age of eighteen, you could still be deported for your crime.
What if you were never officially found guilty? According to the U.S. law (specifically, the Immigration and Nationality Act at I.N.A § 101 (a)(48)), a person can be found to have been “convicted” of a crime with or without having been formally judged guilty. If there was no official finding of guilt but you pled guilty or no contest (“nolo contendere”), or if you admitted enough facts for a finding of guilt to be made and the judge ordered some sort of punishment, penalty, payment of court costs, or restraint of liberty against you, you could be viewed as having been convicted of the crime and deported on that basis. This is true even if the plea is later "withdrawn" after you complete court-ordered requirements such as drug or alcohol rehabilitation or counseling.
In addition, pre-plea diversion programs (where you do not have to enter an official plea) and deferred prosecution or sentencing will not count as a conviction for immigration purposes. Many states offer different types of deferred adjudication alternatives to traditional sentences in which criminal charges may be dismissed after the person completes certain conditions, such as community service or probation. Whether a sentence under a deferred adjudication scheme can be used against you will depend on the type of program and whether you ever pled guilty. Simply put, if you were never required to enter a formal plea, chances are it will not be considered a conviction under immigration law.
Additionally, some states have separate categories of crimes called "violations" or "infractions" that are not considered criminal convictions for purposes of immigration law. These infractions are not handled in traditional court proceedings.
Expungement Won’t Avoid Immigration Consequences for a Criminal Conviction
Some states will allow you to request that your conviction be "expunged" or removed from your criminal record after a certain period of good behavior. While this may help you in other areas of your life, such as securing employment or applying to college, an expungement of a criminal conviction will not allow you to avoid removal proceedings.
Immigration law regards expunged crimes to be the same as regular convictions. You must disclose on any immigration forms (such as an application for a green card or naturalization) any offenses that you have had expunged and tell any immigration officer about them, for example if you are asked about them at the border.
A Vacated Criminal Conviction May Not Count Against You
Although it’s difficult to undo the damage of a crime on your record for immigration purposes, some possibilities do exist. For instance, if your conviction is deemed unconstitutional for any reason and a judge vacates it "for cause," you can ask the Immigration Court to terminate your deportation proceedings (assuming they're based on that conviction). A common reason for criminal court judges to find that a conviction was unconstitutional is that the defendant received ineffective assistance of counsel from his or her criminal attorney.
If a judge vacates your conviction for any other nonconstitutional basis (for example, because he or she feels sorry for you and doesn’t want to see you deported), this will not help you in immigration court.
In 2010 the United States Supreme Court held in a case called Padilla v. Kentucky that it is considered ineffective assistance of counsel for a criminal attorney not to advise a client of the immigration consequences of certain criminal convictions prior to advising the client to enter into a plea bargain agreement. This was a very important decision because it helps protect immigrants from pleading guilty to crimes without knowing whether they will become deportable as a result. Furthermore, the Court’s decision implied that if you were not provided with information about the immigration consequences of your conviction, your constitutional rights were violated and you have a sound basis to vacate your conviction.
Unfortunately, the Supreme Court ruled in 2013 that Padilla does not apply retroactively. In other words, it helps only people whose criminal cases are currently open. Defendants whose convictions have already become final -- that is, who are finished with all appeals or have passed the time when they could file an appeal -- cannot reopen and challenge their convictions based on ineffective assistance of counsel.
A Pardon Could Help You Avoid Deportation
If you have been convicted of a state crime that makes you deportable and are unable to get your conviction vacated by any other means, you could try to get a pardon from your state governor, pardoning panel, or prisoner review board.
Unfortunately, in some states this process could take years. If you have been convicted of a federal crime that makes you deportable, you could attempt to obtain a pardon from the President of the United States. If you are successful in getting a pardon, the conviction will not count against you and you can avoid deportation.
If You've Been Arrested for a Crime But No Further Action Has Yet Been Taken
If you have been arrested for a crime that could have immigration consequences -- most likely because it could be considered either a crime of moral turpitude or an aggravated felony -- you must take all possible measures to avoid a conviction. Find out whether your attorney is familiar with the immigration consequences of your conviction and whether it is possible to plead your charge down to something that would not make you deportable.
Many criminal lawyers know little or nothing about immigration law. They may thus counsel you in ways that would lead to a good result for most clients -- for example, to accept a plea agreement and avoid jail time -- but would be the worst possible result for an immigrant, because the crime to which you plead guilty will make you deportable. If you find that your criminal lawyer is not experienced with immigration law matters, you should also consult with an immigration attorney.
The other option is to take the risk and possible expense of a trial on the hope that you may be found not guilty of the offense you were charged with. Even innocent people sometimes plead guilty to a crime just to avoid a trial. However, this is a decision that no immigrant should take lightly. It is especially important that your charges be handled competently, because if you are ever deported on the basis of committing certain types of crimes, it may not be possible for you to ever legally come to the United States again.