Criminal Issues
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Immigration Consequences of Criminal Convictions
For a non-citizen, a criminal case is never only a criminal case. A conviction — and sometimes an arrest or a plea that never results in a conviction under state law — can make a person deportable, make them inadmissible when they apply for a green card or return from a trip abroad, disqualify them from relief they would otherwise be eligible for, or bar them from naturalizing. These consequences apply to lawful permanent residents as well as to those without status.
How criminal conduct affects immigration status. U.S. immigration law treats criminal history in two separate ways. Grounds of inadmissibility under INA § 212(a)(2) apply when a person seeks admission, a visa, or adjustment of status. Grounds of deportability under INA § 237(a)(2) apply to a person already admitted to the United States. The same offense can be analyzed differently under each, which is why an outcome that seems minor in criminal court can be decisive in immigration court.
Categories that matter most. The offenses that most often create immigration problems include crimes involving moral turpitude; aggravated felonies as defined at INA § 101(a)(43), a term that is far broader than it sounds and can include offenses that are neither aggravated nor felonies under state law; controlled substance offenses; firearms offenses; domestic violence, stalking, child abuse, and violation of a protective order; and crimes involving fraud or deceit. An aggravated felony conviction is especially serious, as it bars most forms of relief from removal and is a permanent bar to naturalization.
“Conviction” means something different in immigration law. Under INA § 101(a)(48)(A), a disposition can count as a conviction for immigration purposes even where state law treats it as something else — including many deferred adjudications and supervision arrangements in which a plea was entered and some penalty imposed. Likewise, a state expungement or sealing generally does not eliminate the immigration consequences of a conviction. Many people learn this only after their criminal case is closed.
Timing is critical. The most effective work usually happens before a plea is entered. Under Padilla v. Kentucky, criminal defense counsel must advise a non-citizen client about the immigration consequences of a plea, and an immigration-informed plea negotiation can sometimes preserve eligibility for relief that a different plea to the same conduct would destroy. Where a case has already concluded, post-conviction relief may be available in some circumstances to vacate a conviction that was legally defective.
Attorney Marinov works with non-citizens facing criminal charges and with those whose past records are now affecting a pending immigration application or removal case, including cases in which criminal history requires a waiver of inadmissibility or forms the basis of a charge of removability. If you are not a U.S. citizen and are facing charges, have a prior record, or have been advised that an old case may affect your immigration status, contact Law Offices of Paul Marinov before taking any further step.
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Common Questions
I am not a U.S. citizen and I have been charged with a crime. What should I do first?
Tell your criminal defense attorney that you are not a U.S. citizen, and speak with an immigration attorney before you accept any plea. The immigration consequences of a plea are often permanent and are much harder to address after the case is resolved.
Can a conviction cause me to lose my green card?
Yes. Lawful permanent residents are not protected from removal. Certain convictions make a permanent resident deportable, and some also bar the forms of relief that might otherwise allow them to keep their status.
What is a crime involving moral turpitude?
It is an immigration law category rather than a criminal one, generally covering offenses involving fraud, theft, or conduct considered inherently base or depraved. Whether a particular offense qualifies depends on the statute of conviction and current case law, and the analysis is often contested.
What is an aggravated felony?
It is a term defined at INA § 101(a)(43) that covers a long list of offenses. Despite the name, an offense need not be aggravated or a felony under state law to qualify. An aggravated felony conviction carries the most severe immigration consequences, including a bar to most relief from removal and a permanent bar to naturalization.
Are drug offenses treated differently?
Controlled substance offenses are treated very seriously and can trigger both inadmissibility and deportability. There is a narrow exception for a single offense involving simple possession of 30 grams or less of marijuana, but it is limited and should not be assumed to apply without review.
Does a DUI affect my immigration status?
A single simple DUI is often not itself a ground of deportability, but it is not harmless. It can affect discretionary decisions, good moral character determinations, and DACA or other benefit requests, and aggravating factors or repeat offenses change the analysis significantly.
I completed court supervision or deferred adjudication and my case was dismissed. Am I safe?
Not necessarily. Under INA § 101(a)(48)(A), a disposition can count as a conviction for immigration purposes if a plea was entered and some form of penalty or restraint was imposed, even where state law does not treat it as a conviction.
Will expunging or sealing my record solve the problem?
Generally no. A state expungement or sealing does not eliminate the immigration consequences of a conviction, and the record remains available to immigration authorities. A conviction usually must be vacated for a legal defect, not simply cleared, to affect the immigration analysis.
Can an old conviction still cause problems years later?
Yes. Old convictions frequently surface when a person applies for a green card, applies for naturalization, or returns from travel abroad. Many people first learn of a problem when an application that seemed routine is denied or referred.
Will a criminal record prevent me from becoming a U.S. citizen?
It may. Naturalization requires good moral character during the statutory period, and some convictions create a permanent bar. Filing an N-400 with an unresolved criminal issue can also draw attention to removability, so the record should be reviewed before applying.
Can I still get a green card if I have a criminal record?
Sometimes. Depending on the offense, a waiver of inadmissibility may be available, most often requiring a showing of extreme hardship to a qualifying U.S. citizen or permanent resident relative. Some offenses cannot be waived, so an individual assessment is necessary.
What is post-conviction relief and can it help me?
It refers to legal challenges to a conviction after the case has concluded, such as a motion to vacate based on a defect in the original proceedings. Under Padilla v. Kentucky, a failure to advise a non-citizen defendant about immigration consequences may in some cases support such a challenge. Relief is not available in every case and depends on the record.
I was arrested but never convicted. Does that matter?
It can. An arrest without a conviction is generally not a ground of deportability, but it may still need to be disclosed on immigration applications, and certain conduct-based grounds — such as reason to believe a person is a drug trafficker — do not require a conviction at all.
What should I bring to a consultation about a criminal issue?
Certified copies of the charging document, plea, and final disposition for every case, along with your immigration documents. The specific statute and subsection you were convicted under, and the language of the plea, usually determine the immigration outcome.
