When a criminal case puts your status at risk
"Crimmigration" is the overlap between criminal law and immigration law. For anyone who is not a U.S. citizen, a criminal case carries two sets of risks: the sentence in criminal court, and the immigration consequences that can follow, such as detention, removal, denial of a green card or citizenship, or being unable to return after travel.
A plea that looks minor in criminal court can have serious immigration effects. Timing matters most before a plea is entered. This page is for noncitizens who have been arrested, are under investigation, or are about to resolve a case, and for their families and criminal defense lawyers.
Who is at risk
Only U.S. citizens are fully protected from removal. Green card holders, visa holders, DACA recipients, people with TPS or pending applications, and people without status can all face immigration consequences from a criminal case. People with temporary status or no status are often the most exposed.
Offenses that commonly raise immigration problems
- Aggravated felonies. A federal immigration category that can include some offenses a state treats as misdemeanors, such as certain theft or violence offenses depending on the sentence. It carries the most severe consequences.
- Crimes involving moral turpitude. Generally offenses involving fraud, theft or intent to cause serious harm. Consequences depend on the number of offenses, the possible sentence and timing.
- Controlled substance offenses. Most drug convictions, including many possession offenses, create serious immigration problems.
- Firearm offenses.
- Domestic violence, stalking, child abuse and violations of certain protection orders.
- Fraud and false statements, including offenses involving documents or benefits.
Other offenses, such as a DWI, may not by themselves make someone deportable, but can still affect bond, DACA, naturalization and discretionary relief.
Whether a particular conviction triggers these rules depends on the exact statute, the subsection, the record of conviction and the sentence. The label a state uses is not the deciding factor, and a disposition treated as minor under state law can still count as a conviction for immigration purposes.
What we handle
- Immigration consequence analysis of pending charges and proposed pleas
- Working with your criminal defense lawyer on immigration-safer plea options
- Review of past convictions before you apply for a green card, citizenship or a waiver, or before you travel
- Defense in removal proceedings based on criminal charges (see deportation defense)
- Bond and release requests when ICE detains someone after an arrest
- Federal cases with immigration exposure (see federal criminal defense)
How we help
- Review the charging documents, criminal history and your full immigration history.
- Identify which charges and outcomes carry immigration risk, and which may be safer.
- Explain the consequences in writing so you and your defense lawyer can make informed decisions.
- Communicate with your criminal defense lawyer about the plea, the wording of the allocution and the sentence.
- If you are already in removal proceedings, evaluate defenses and relief that remain available.
What to do now
- If you are arrested or questioned, you have the right to remain silent. Ask for a lawyer and do not discuss your immigration status or where you were born.
- Tell your criminal defense lawyer that you are not a U.S. citizen. Under Padilla v. Kentucky, defense counsel must advise noncitizen clients about deportation risk.
- Do not accept a plea until the immigration consequences have been reviewed.
- Do not travel outside the United States or file any immigration application while a case is pending, or after a conviction, without advice.
- Gather the complaint or indictment, bail papers, any plea offer, certificates of disposition for past cases and your immigration documents.
Things to know about past convictions
- Sealing a record, including under New York's Clean Slate Act, generally does not remove a conviction for immigration purposes. See record sealing.
- A conviction vacated because of a legal defect in the original case may no longer count for immigration purposes. A conviction vacated only to avoid immigration consequences generally still counts. See post-conviction relief.
- Applying for naturalization or a green card renewal with a conviction on your record can lead to closer review. Have your record reviewed before you file.
For more background, read our article on the crimmigration process in New York. To discuss a pending or past case, contact Usher Law Group.
Frequently asked questions
Can a misdemeanor lead to deportation?
Yes. Some misdemeanors, including certain drug, theft, fraud and domestic violence offenses, can have immigration consequences. What matters is the exact statute, the record of conviction and the sentence, not only the label.
Should I plead guilty to get out of jail faster?
Not before the immigration consequences are reviewed. A quick plea can create a permanent immigration problem. Tell your defense lawyer you are not a citizen and ask for an immigration analysis first.
Does sealing my record fix the immigration problem?
Generally no. Sealing or expungement usually does not remove a conviction for immigration purposes, and you may still have to disclose it on immigration applications.
Can I travel abroad if I have a green card and an old conviction?
Travel can be risky. Some convictions can lead to problems when you return to the United States. Have an attorney review your record before any trip.