Immigration Risks of Pleading Guilty or No Contest

If you are a foreign national living in the United States (whether with a visa, green card, or no status at all) and you have been arrested, the first thing on your mind might be avoiding prison and similar consequences. Your criminal defense lawyer might encourage you to accept a plea deal, so as to resolve the case quickly and to avoid jail time. However, you will need to consider the immigration consequences of any such choice, whether it's going ahead to a trial or pleading guilty or no contest. Here's the thing: The conviction or other result to which you agree could result in removal proceedings being brought against you in Immigration Court or even placement in expedited removal proceedings without a chance to see an immigration judge. Such consequences can occur even if you already have lawful permanent resident status (a green card).

If you have already made a plea bargain and been convicted of a crime that could make you deportable, it's worth exploring whether there is anything else you can do to avoid deportation. We'll discuss all these issues below. Enforcement priorities shift over time, but the U.S. government continues to initiate removal proceedings for a wide range of offenses, even relatively minor ones. This makes it especially important for defense and immigration lawyers to coordinate early in the case.

Will Juvenile Convictions Count Against You in Immigration Matters?

Convictions in juvenile court will not count against you under U.S. immigration law. But if you were charged as an adult despite being under the age of 18, you could still be held accountable and deported for the crime.

When an Arrest Without a "Conviction" Can Hurt Your U.S. Immigration Situation

Many bases for deporting a noncitizen require an actual conviction on record, so there's good reason to try to avoid having your criminal case get to this point. If you are arrested for a crime but the charges are dropped or dismissed, it's not legally considered a "conviction." Then again some arrests can, by themselves, have serious immigration consequences, as described next.

Arrests Can Affect Good Moral Character Determinations

As one example of how an arrest without a conviction can lead to negative immigration consequences, realize that immigration officers may review arrest reports to determine whether a person meets the "good moral character" requirement for naturalization or other immigration benefits. This can happen even if the charges were dropped. Such review can come as a shock to people who thought their criminal case was over. Arrests involving harm to a child can be particularly damaging during immigration review.

Plea of "Guilty" or "No Contest" Can Be Held Against Immigrant

What if you were never officially found guilty of a crime? According to U.S. law (the Immigration and Nationality Act at I.N.A § 101 (a)(48) or 8 U.S.C. § 1101(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 possibly 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.

How Pre-Plea Diversion Programs and Deferred Sentencing Are Viewed Under Immigration Law

Pre-plea diversion programs (where the accused does not have to enter an official plea) and deferred prosecution or sentencing will not usually 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.

However, whether a sentence under a deferred adjudication scheme can be used against you for immigration purposes 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 U.S. immigration law. In practice, even a court-ordered program, such as a diversion program, can sometimes be treated as a conviction for immigration purposes. Criminal defense attorneys often underestimate how broadly immigration law defines the term "conviction." If there is evidence that you have participated in multiple diversion programs, this can be counted against you when immigration officials evaluate your moral character.

Some states also offer specific diversion programs for people arrested on suspicion of driving under the influence (DUI). While a single DUI conviction may not automatically prevent a finding of "good moral character," two DUI convictions may result in an automatic bar to such a finding. See Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019).

Violations and Infractions Are Not Considered Criminal Convictions

Some states have separate categories of offenses known as "violations" or "infractions." These are not considered criminal convictions for immigration purposes. Such matters are ordinarily handled outside traditional criminal court proceedings.

Expungement Won't Avoid Immigration Consequences for a Criminal Conviction

For people who end up with an actual criminal conviction on their record, some U.S. states allow them to request that this conviction be "expunged" or removed from their record after a certain period of good behavior. While this could 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 immigration consequences such as removal proceedings.

Immigration law regards expunged crimes in the same way as regular convictions. You must disclose on any immigration forms (such as an application for a green card or naturalization) any record of offenses that you have had expunged and tell any immigration officer about them, for example if asked about them at the U.S. border.

Immigration law looks beyond the criminal record and focuses on the underlying conduct. That conduct often determines whether a person is considered fit for legal status in the United States. Even if a crime has been expunged, the underlying behavior may still raise concerns for immigration purposes. Failing to disclose an expunged conviction on any immigration application can also be treated as fraud or misrepresentation.

A Vacated Criminal Conviction Might Not Count Against You

As you can see, it's difficult to undo the damage of a crime on your record for immigration purposes. Some possibilities do exist, however. Most notably, if your conviction is deemed unconstitutional 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 a criminal attorney.

If a judge vacates your criminal conviction on virtually any other basis (for example, because the judge feels sorry for you and doesn't want to see you deported), this will not help you in immigration court.

To be successful, your immigration attorney and criminal defense attorney must work closely together. Timing is critical, because if a conviction is vacated after the immigration proceedings have concluded, it may be too late to appeal or have the decision changed.

What If Your Defense Attorney Fails to Warn You of Possible Immigration Consequences?

There's more of a likelihood than ever that you did or will receive some sort of warning of the immigration consequences of your crime or guilty plea. This is due to 2010 U.S. Supreme Court case called Padilla v. Kentucky. The high Court ruled that it's considered "ineffective assistance of counsel" for a criminal attorney to not advise a client of the immigration consequences of certain criminal convictions prior to advising them to enter into a plea bargain agreement. The Court's decision also 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 upon which to vacate your conviction.

In response, many courts have revised their forms and plea agreement documents to require judges and lawyers to explicitly inform noncitizen defendants of immigration risks before accepting guilty pleas. (See, for example, Rule 11(b) in the Federal Rules of Criminal Procedure.)

As a result, you'll have trouble claiming "I didn't know my guilty plea would lead to deportation!" if a judge or lawyer warned you beforehand. Many judges routinely ask noncitizens whether they have discussed the immigration consequences of a guilty plea or the like with their attorney—and offer the chance for them to do so if not.

Unfortunately, the Supreme Court ruled in 2013 that Padilla does not apply retroactively. Criminal 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 Can Help 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. (Unlikely.) 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 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 criminal attorney is familiar with the immigration consequences of your conviction and whether it is possible to plead your charge down to an offense that would not make you deportable.

Many criminal lawyers are not familiar with U.S. immigration law. They might recommend what seems like a good outcome for most clients, such as taking a plea to stay out of jail, but that same decision can lead to deportation for a noncitizen. A plea that looks favorable in criminal court can still destroy your chances of remaining in the United States. If your criminal lawyer is not experienced in immigration matters, it is important to speak with an immigration attorney before entering any plea.

In many cases, what determines the outcome is not just the charge itself but how the plea is written or recorded. Small details in the wording of the plea or statute can make the difference between staying in the country or becoming removable. This is why it is important to have both your criminal and immigration attorneys work together early in the process.

The other option is to take the risk and possible expense of a trial on the hope that you might be found not guilty of the offense you were charged with. This choice should not be made lightly. Even innocent people sometimes plead guilty to avoid trial, but for immigrants, the long-term consequences of a guilty plea can be far worse than the short-term penalty.

Getting Legal Help

It is especially important that your criminal charges be handled competently, because if you are ever deported on the basis of committing certain types of crimes, it might not be possible for you to ever legally come to the United States again. What's more, the legal landscape is changing when it comes to treatment of noncitizens in the U.S. court system. You would thus be wise to bring an immigration attorney onto your legal team as soon as possible after an arrest.