A person arrested for a crime often has two choices: pleading guilty, or taking their chances with a jury who decides their guilt. For American citizens, a guilty plea could mean the loss of liberty through a jail sentence or probation. However, for immigrants, a guilty plea often means far more and far worse than that.
In the context of United States immigration law, a criminal conviction of any kind can have a far-reaching impact on an immigrant’s pursuit of the American dream and, in certain situations, could lead to deportation from the United States. With the influx of immigrants into the United States in recent years and the recent changes in federal enforcement priorities of our immigration laws, it is more important than ever for immigrants to be aware of the immigration consequences of pleading guilty to a crime in the United States.
Prior to making a decision to plead guilty or to rely on a jury to assign guilt, those facing criminal conviction often seek advice from their criminal defense attorney. What happens when the criminal defense attorney is not aware of their client’s immigration status or is not fully versed in the immigration consequences of a criminal conviction? Understanding the immigration consequences of a particular criminal disposition can be very complicated and often involves careful analysis of the elements of the state offense and the state’s particular disposition of the case under federal immigration law. To understand the immigration consequences of a particular criminal disposition for a particular immigrant, one must first comprehend the distinction between the criminal grounds of deportability and the criminal grounds of inadmissibility and when each applies.
There are two separate sections of the U.S. immigration law that would prompt the government to initiate removal proceedings based on a criminal offense—the grounds of “deportability” under section 237(a) of the Immigration & Nationality Act (“INA”) and the grounds of “inadmissibility” under section 212(a). The set of grounds which apply to an immigrant, or whether both sets apply, depends on the immigrant’s particular immigration status. The grounds of deportability are applicable to those who have been “lawfully admitted” to the United States, such as lawful permanent residents. The grounds of inadmissibility apply to everyone else, even individuals who are in the United States but who have not been lawfully admitted to the United States. In addition, the inadmissibility grounds could also apply to lawfully admitted immigrants when such persons travel abroad and seek readmission to the United States.
Both sections of the INA statute provide categories of criminal activities that could result in negative consequences such as controlled substance offenses, crimes involving moral turpitude, crimes of domestic violence, firearm or destructive device offenses, and aggravated felonies. Each category carries different negative results, depending on whether a person has been found to be inadmissible or deportable. For example, while a single conviction for a crime involving moral turpitude may result in the initiation of removal proceedings against someone who is unlawfully present, that same conviction may not have any consequences for a lawful permanent resident. In some instances, merely admitting to having committed a crime without an actual conviction can lead to a negative immigration consequence, depending on the immigrant’s status. In addition, for those seeking to become United States citizens, even the smallest criminal conviction could result in the denial of a naturalization application. Ultimately, the nature of the criminal accusation and the legal status of the immigrant need to be assessed before determining the impact of a conviction.
If an immigrant decides he or she wants to plead guilty and take advantage of a plea agreement offered by the prosecution, he or she must take care not to accept an offer that may have unknown immigration consequences. The federal immigration definition under INA section 101(a)(48)(A), outlines what constitutes a “conviction” for immigration purposes, which includes not only formal judgments of guilt, but also deferred adjudications where there is a plea or other admission of guilt plus some penalty or restraint ordered by the court. As a result, the offer of probation or pre-trial diversionary programs, instead of a jail sentence, can seem inviting but, depending on the state, could result in a conviction with negative immigration consequences.
In 2010, the U.S. Supreme Court issued a landmark decision, Padilla v. Kentucky, which provided that if an immigrant’s former criminal defense attorney failed to advise them of the immigration consequences of a guilty plea, that immigrant could withdraw their deal and either seek a better plea agreement from the prosecution or take his case to trial, as they were not provided due process under the law. This decision has provided assistance to many immigrants who pled guilty on the advice of an attorney, without ever being informed about the immigration consequences of a guilty plea. Unfortunately, this ruling does not negate the fact that there are still lawyers out there who do not fully understand the immigration law or the possible immigration consequences of criminal convictions, resulting in poor advice that separates families. It is more important than ever to consult with an immigration attorney when navigating the criminal justice system.
If you or someone you know has been arrested for a crime or has pled guilty to a crime in the past and has immigration-related questions about those criminal proceedings, please visit our Immigration 101 page or contact Managing Partner Michael Wildes at [email protected].
* This article is based on information available as of its publication and is not intended to be all-inclusive or to furnish advice in a particular case. We are not responsible for any changes in regulations that may occur subsequent to publication. Please feel free to contact our office for further information and advice.
Michael J. Wildes is the managing partner of Wildes and Weinberg, P.C. Mr. Wildes is a former federal prosecutor with the United States Attorney’s Office in Brooklyn (1989-1993). Mr. Wildes has testified on Capitol Hill in connection with anti-terrorism legislation and is internationally renowned for his successful representation of several defectors who have provided difficult-to-obtain national security information. He is frequently a legal commentator/analyst for network television. He is an adjunct professor at the Benjamin N. Cardozo School of Law in New York and teaches Business Immigration Law. From 2004 through 2010, Mr. Wildes was also the mayor of Englewood, New Jersey—where he resides. Wildes and Weinberg, P.C., has offices in New York, New Jersey and Florida. If you would like to contact Michael Wildes please email him at [email protected] and visit the firm’s website at www.wildeslaw.com.
By Michael J. Wildes
