What Is a Conviction for Immigration Purposes?
Immigration law defines "conviction" more broadly than criminal law. Under INA Section 101(a)(48), a conviction exists when:
A judge or jury finds the person guilty, the person pleads guilty or nolo contendere, or the person admits sufficient facts to warrant a finding of guilt; AND the judge orders some form of punishment, penalty, or restraint.
This means plea deals, deferred sentences with probation, and other dispositions that may not be "convictions" under state law can still be convictions for immigration purposes.
Do Expunged or Sealed Records Count?
Generally, yes. Most state expungements and record sealings do not eliminate immigration consequences. The conviction still occurred for federal immigration purposes.
Certain specific dispositions may avoid immigration consequences: some first-time offender programs where no guilt is admitted, pre-trial diversion without admission, and some juvenile adjudications.
Consult an immigration attorney about specific disposition types before assuming a record was truly cleared for immigration purposes.
What Are Crimes Involving Moral Turpitude?
Crimes involving moral turpitude (CIMT) are offenses that involve fraud, dishonesty, or conduct considered inherently base or depraved. The exact definition depends on case law analysis.
Common CIMTs include: fraud and theft offenses, crimes with intent to defraud, assault with intent to cause serious bodily harm, murder and manslaughter, sexual offenses, and crimes involving dishonesty.
One CIMT conviction can make you inadmissible if committed within five years of admission and punishable by one year or more. Two or more CIMT convictions at any time make you inadmissible.
Is My Crime a CIMT?
CIMT analysis is complex and depends on the specific elements of the statute of conviction, not the underlying facts.
Courts use a "categorical approach" examining the minimum conduct required for conviction, not what actually happened.
Immigration attorneys analyze state criminal statutes against immigration law definitions to determine CIMT status. Do not assume whether your crime is a CIMT without professional analysis.
What Is an Aggravated Felony?
"Aggravated felony" is an immigration law term covering serious crimes. Despite the name, many aggravated felonies are neither aggravated nor felonies under state law.
The list in INA Section 101(a)(43) includes: murder, rape, sexual abuse of a minor, drug trafficking, firearms trafficking, theft offenses with one-year sentence, fraud offenses with loss exceeding $10,000, and many others.
Aggravated felony consequences are devastating: mandatory deportation, no cancellation of removal eligibility, permanent inadmissibility, and no asylum eligibility.
Why Are Aggravated Felonies So Serious?
Aggravated felony convictions eliminate most forms of immigration relief. Even long-term permanent residents with U.S. citizen family members face mandatory deportation.
The person becomes permanently inadmissible and can never legally return to the United States without extremely limited waivers.
Illegal reentry after aggravated felony deportation is a federal crime with enhanced penalties (up to 20 years imprisonment).
What About Drug Offenses?
Controlled substance convictions trigger severe immigration consequences. Any drug conviction except a single offense for possession of 30 grams or less of marijuana makes you inadmissible.
Drug trafficking aggravated felonies result in mandatory deportation with almost no relief.
Even marijuana possession, while potentially avoiding inadmissibility under the petty offense exception, can cause deportability and affect naturalization.
Does State Marijuana Legalization Help?
No. Marijuana remains federally illegal, and immigration law is federal. State legalization does not protect non-citizens from immigration consequences.
Non-citizens in legal marijuana states can still face immigration consequences for marijuana-related activities, including employment in the marijuana industry.
USCIS has denied naturalization applications for people involved in state-legal marijuana businesses.
Domestic Violence and Related Crimes
Domestic violence, stalking, child abuse, child neglect, and violation of protection orders are deportable offenses under INA Section 237(a)(2)(E).
These crimes are deportable regardless of whether they are CIMTs or aggravated felonies under separate analysis.
Conviction is required, but even non-conviction dispositions can affect immigration in other ways (such as affecting good moral character determinations for naturalization).
What Is the Definition of Domestic Violence?
For immigration purposes, domestic violence includes any crime of violence against a current or former spouse, co-parent, cohabitant, or person in a similar relationship.
State law definitions vary; immigration law applies federal definitions to categorize convictions.
Even misdemeanor convictions can trigger deportability. Sentence length is not the determining factor.
Immigration Consequences by Status
Nonimmigrant visa holders: Criminal convictions can cause visa revocation, denial of entry at ports, and bars from future visas.
Lawful permanent residents: Green card holders can be deported for deportable crimes. Aggravated felonies strip most protections regardless of time in the U.S.
DACA recipients: Criminal convictions can terminate DACA and lead to removal proceedings.
Undocumented individuals: Criminal records complicate any path to legal status and increase enforcement priorities.
Do Green Card Holders Have More Protection?
Long-term permanent residents have some additional relief options, but aggravated felonies override these protections.
Cancellation of removal requires seven years of permanent residence and no aggravated felony conviction. This relief is unavailable to aggravated felony offenders.
Even lawful permanent residents of 30+ years with U.S. citizen children face mandatory deportation for aggravated felonies.
What Should You Do If Facing Criminal Charges?
Consult an immigration attorney immediately. Do not rely on criminal defense attorneys alone for immigration advice unless they specialize in "crimmigration."
Evaluate plea offers for immigration consequences before accepting. A seemingly good criminal deal may have devastating immigration effects.
The Supreme Court's Padilla v. Kentucky decision requires criminal defense attorneys to advise non-citizen clients about immigration consequences, but this advice may be insufficient without immigration expertise.
Can Plea Deals Be Structured to Minimize Immigration Impact?
Sometimes. Skilled attorneys may negotiate pleas to immigration-safer offenses when possible.
For example, pleading to a crime that does not meet the CIMT or aggravated felony definition may preserve immigration options.
The goal is avoiding convictions that trigger mandatory immigration consequences while resolving criminal liability appropriately.
Waivers and Relief Options
Some grounds of inadmissibility can be waived. Form I-212 waives certain inadmissibility for those seeking reentry after removal.
Cancellation of removal (for those already in proceedings) requires continuous presence, good moral character, exceptional hardship to qualifying relatives, and no disqualifying convictions.
Post-conviction relief (vacating convictions for legal defect) may eliminate immigration consequences if done properly and for valid reasons.
What If You Were Already Deported?
Reentry after removal is generally prohibited. Illegal reentry is a federal crime.
Waivers for lawful reentry are difficult to obtain, especially after removal for criminal grounds.
Some deported individuals may qualify to apply for permission to reapply for admission after waiting periods.
