Immigration Consequences of Criminal Convictions

The intersection of criminal law and immigration law is one of the most legally consequential areas that non-citizens encounter, and it is also one where the gap between what most people expect and what the law actually provides is widest. A misdemeanor that results in probation and a small fine for a US citizen can result in permanent deportation for a non-citizen. A guilty plea entered quickly because the criminal sentence seemed minor can trigger immigration consequences that were never disclosed in the plea negotiations.

The Supreme Court held in Padilla v. Kentucky in 2010 that criminal defense attorneys have a constitutional obligation to advise non-citizen clients about the immigration consequences of guilty pleas. Despite this ruling, the advice non-citizen defendants receive about immigration consequences is frequently inadequate, and many people discover the immigration impact of their criminal cases only when they apply for a benefit or are placed in removal proceedings years later.

This guide explains the major categories of criminal convictions that trigger immigration consequences, what those consequences are, and what can sometimes be done to mitigate them.

Aggravated Felonies: The Most Serious Category

The term aggravated felony in immigration law is deeply misleading. It does not mean a felony that was aggravated in the criminal law sense, and it includes many offenses that are classified as misdemeanors under state law. The aggravated felony definition in the Immigration and Nationality Act includes a specific and expanding list of offenses that Congress has designated as particularly serious for immigration purposes.

The immigration consequences of an aggravated felony conviction are among the most severe in the entire system. An aggravated felony conviction makes a non-citizen deportable, permanently bars them from receiving almost all forms of discretionary relief from removal, makes them permanently inadmissible to return to the United States, and bars them from naturalization. There is essentially no form of relief from removal available to someone convicted of an aggravated felony, which makes the designation effectively a sentence of permanent exile.

The INA's aggravated felony list includes murder, rape, sexual abuse of a minor, drug trafficking, firearms trafficking, money laundering above specified amounts, crimes of violence with sentences of one year or more, theft or burglary offenses with sentences of one year or more, fraud or tax offenses involving more than $10,000, and a long list of other specified offenses. The critical point is that the one-year sentence threshold in several categories is the sentence imposed, not necessarily served, meaning that even a suspended one-year sentence can trigger the aggravated felony designation.

Crimes Involving Moral Turpitude

Crimes involving moral turpitude, abbreviated CIMT, are offenses that involve fraud, dishonesty, intentional harm to persons or property, or other conduct considered inherently depraved or contrary to accepted moral standards. The CIMT designation is determined by the elements of the offense rather than the specific facts of how it was committed, which means that some convictions trigger CIMT status even when the specific conduct was not particularly egregious.

A single CIMT conviction can trigger deportability if it was committed within five years of admission to the United States and resulted in a sentence of one year or more. Two or more CIMT convictions at any time after admission trigger deportability regardless of when they occurred or what sentences resulted. A single CIMT can also bar admission to the United States for someone seeking an immigrant or nonimmigrant visa.

The petty offense exception provides some protection: a non-citizen who has been convicted of only one CIMT with a maximum possible sentence of one year or less and who was sentenced to six months or less is not deportable for that conviction. This exception is narrow but important for people with minor first offenses who might otherwise face deportation.

Drug Offenses and Their Severe Immigration Consequences

Drug offenses carry particularly severe immigration consequences. Any conviction relating to a controlled substance other than a single offense for simple possession of 30 grams or less of marijuana makes a non-citizen deportable and bars them from most immigration benefits. Drug trafficking offenses, which include distribution, possession with intent to distribute, and conspiracy to traffic, are aggravated felonies with the corresponding permanent consequences.

The drug offense deportability ground has no exceptions for rehabilitative dispositions in most cases. A deferred adjudication, a conditional discharge, or a diversion program that results in dismissal of the charges without a formal conviction may avoid the immigration consequences in some jurisdictions, but the specific treatment of alternative dispositions varies by state and by the specific program. USCIS and immigration courts often look behind the label of the disposition to determine whether the underlying conduct constitutes a conviction for immigration purposes.

Marijuana-related convictions create particular complexity because marijuana has been decriminalized or legalized in many states while remaining a controlled substance under federal law. State decriminalization or legalization does not change the federal immigration law treatment of marijuana offenses, and a conviction that is treated as minor under state law may still trigger serious immigration consequences because federal law controls the immigration analysis.

Post-Conviction Relief and Immigration Mitigation

Post-conviction relief mechanisms, including vacatur of convictions, sentence modifications, and appeals, can sometimes eliminate or reduce the immigration consequences of criminal convictions. If a conviction is vacated for constitutional or legal reasons, the vacated conviction generally cannot be used as the basis for deportation or inadmissibility. If a sentence is reduced to below the threshold that triggers a particular immigration consequence, the immigration effect may be eliminated.

Plea bargaining with immigration consequences in mind is one of the most important tools for protecting non-citizen defendants. When a non-citizen is charged with an offense that carries potential immigration consequences, an immigration attorney working in coordination with the criminal defense attorney can identify alternative charges or plea structures that achieve an acceptable criminal resolution without triggering the most severe immigration consequences.

Not all convictions are amenable to post-conviction relief or immigration-conscious plea bargaining. Some offenses have immigration consequences regardless of how they are charged or sentenced. But for non-citizens facing criminal charges, the combination of effective criminal defense and immigration analysis from the beginning of the case, rather than after a plea has already been entered, provides the best opportunity to protect both the criminal and immigration outcomes.

Final Thoughts

The immigration consequences of criminal convictions are among the most severe and least understood aspects of the immigration system. A criminal case that a defendant believes is being resolved minimally can trigger permanent deportation, bars to reentry, and the destruction of a life built in the United States, all as a consequence of a plea entered without adequate understanding of what that plea means for immigration purposes.

Every non-citizen facing criminal charges should insist that their criminal defense attorney consult with an immigration attorney about the immigration consequences before any plea is entered. This consultation is not optional; it is the constitutional minimum established by the Supreme Court, and failing to have it can result in consequences that no sentence modification or post-conviction relief can fully undo.

If you or a family member has a prior conviction and is now facing immigration consequences, consult an immigration attorney immediately. Post-conviction relief options may exist, and understanding them promptly preserves options that may be foreclosed if too much time passes.