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How Could a Plea Deal Lead to Deportation?
The intersection of criminal law and immigration law is too often perilous for non-citizens, including lawful permanent residents, facing criminal charges in the United States. Plea bargains are designed to foster efficiency and often result in reduced sentences in criminal proceedings. Yet, these orders can unexpectedly trigger severe immigration consequences, including detention and deportation.
Nearly 98% of convictions nationwide come from guilty pleas. This makes plea bargaining the primary method to resolve criminal cases. However, for non-citizens, these less expensive seemingly expedient agreements can have devastating and permanent consequences that extend far beyond the criminal penalties themselves. The decisions can result in removal from the United States, indefinite separation from family, and bars to reentry. The knowledgeable assistance of a trusted immigration attorney can prove crucial for non-citizens attempting to navigate criminal charges while protecting their resident status and/or path to citizenship.
Understanding Plea Bargains in the Immigration Context
A plea bargain is a negotiated agreement between a defendant and prosecutor, where the defendant may or may not plead guilty in exchange for certain concessions, such as community service, psychological counseling, more lenient sentences, reduced charges, or the dismissal of all or some charges. While these arrangements may seem beneficial because defendants can avoid a lengthy trial and potentially receive a reduced sentence, a plea deal can have catastrophic immigration consequences for non-citizens. Unfortunately, pleading guilty to certain offenses can automatically trigger deportation proceedings, even for lawfully present immigrants with green cards. It can also temporarily or permanently disqualify applicants for citizenship by naturalization and adjustment of status.
What Are Deportable Offenses Under Immigration Law?
The Immigration and Nationality Act (INA) specifies several categories of criminal convictions that can trigger deportation proceedings for non-citizens. Crimes involving moral turpitude (CIMTs) can lead to deportation for green card holders if committed within five years of admission or if two unrelated CIMTs are committed at any time. While the INA is unable to provide an all inclusive list of moral turpitude offenses, these generally include crimes that violate community standards, such as violent or sexual offenses, fraud crimes, or property crimes like theft.
Aggravated felonies constitute another major category of deportable offenses. For immigration purposes, a conviction becomes an aggravated felony if a sentence of one year or more is imposed. The INA defines specific crimes as “aggravated” for deportation purposes, including certain burglary offenses, sexual abuse of children, rape, drug trafficking, and homicide. Even when a plea bargain results in a conviction for a lesser offense, that conviction may still qualify as an aggravated felony under immigration law, triggering expedited removal proceedings.
Other deportable offenses include both misdemeanor and felony drug crimes, domestic violence offenses, and weapons crimes involving the illegal possession, sale, or use of firearms. The broad scope of these categories means that even minor offenses can have disproportionate immigration consequences.
What Constitutes a “Conviction” for Immigration Purposes?
A critical misunderstanding among defendants is the definition of “conviction” in immigration contexts. For immigration purposes, a “conviction” is any formal adjudication of guilt where a judge orders some form of punishment, such as a fine, a suspended sentence, or probation, regardless of duration. Critically, dispositions that don’t count as convictions in criminal courts, such as continuances without a finding (CWOF), admissions of sufficient facts, or “nolo contendere” pleas that ultimately result in dismissal, may still count as convictions for immigration purposes. Such determinations can depend upon the state or Federal laws on sentencing.
Some defendants may mistakenly believe that expunging their record removes all consequences of a crime. While expungement may help with employment or education opportunities, it generally fails to erase the immigration consequences of a conviction. Similarly, a guilty plea that is officially withdrawn after completing certain court ordered obligations will not undo its immigration consequences. These nuances highlight why detailed knowledge of both criminal and immigration law is essential when non-citizens face criminal charges.
What Are the Ramifications of Plea Bargains for Non-Citizens in Misdemeanor Court?
Non-citizens face particular risks in misdemeanor courts where attorney’s fees too often seem to outweigh the perceived incentives to fight charges. As bail and other court-related expenses frequently make challenging minor charges impractical, many defendants accept plea bargains regardless of actual guilt or potential defenses. This system increases the likelihood that a non-citizen’s low-level conviction does not reliably indicate guilt. Tragically, even unwarranted convictions can trigger severe immigration consequences for minor infractions.
What Legal Protections Are in Place For Non-Citizens in the Criminal Justice System?
The Supreme Court has recognized the severity of deportation consequences by requiring defense attorneys to advise non-citizen clients about potential immigration implications before entering guilty pleas. Failure to provide accurate advise about deportation risks constitutes ineffective assistance of counsel. Yet, simply warning a client to seek advice from an immigration attorney may be all that is required to create a final criminal order. Some jurisdictions have also implemented “alien warnings” during criminal proceedings to ensure defendants understand potential immigration consequences. However, once these warnings are given and acknowledged on record, vacating a conviction later based on lack of warning can prove difficult.
Despite these protections, many non-citizens still enter plea agreements without fully understanding the immigration consequences, particularly in busy misdemeanor courts where case processing is expedited, pressure to plead is strong, and defense resources are limited. Unfortunately, it can be challenging for lawful permanent residents to effectively negotiate for immigration-safe dispositions on their own, especially in low-level cases where the gap between the criminal conduct and deportation outcome is largest.
What Strategies Can Be Used to Mitigate Deportation Risks?
When facing criminal charges, non-citizens should be mindful of the potential impacts on their immigration journey and avoid pleading guilty to any offense that might be considered a controlled substance offense, crime of moral turpitude, or an aggravated felony. Criminal defense attorneys, while constitutionally required to advise on immigration consequences, often lack thorough knowledge of immigration law’s nuances. If you have been charged with any crime as an immigrant, seeking the counsel of an experienced immigration attorney is strongly recommended to ensure your rights are upheld and your immigration status is not jeopardized.
For those who have already pled guilty without understanding the immigration consequences, some limited options exist. If a court vacates the conviction “for cause” due to constitutional violations or similar reasons, this may halt deportation proceedings. However, vacating a conviction merely for rehabilitation or immigration hardship purposes will generally not remove the immigration consequences.
Defendants may also try to negotiate specific terms in plea agreements to minimize immigration impacts. Strategies can include carefully crafting what appears in the official record and ensuring the sentence imposed falls below thresholds that trigger immigration consequences. In some cases, diversion programs and deferred prosecution may provide alternatives that don’t count as convictions for immigration purposes.
How Can an Experienced Immigration Attorney Assist You?
While current plea bargaining systems offer some measure of efficiency and certainty for defendants, it creates significant risks for non-citizens in the United States. Non-citizens facing criminal charges should approach plea bargains with extreme caution, recognizing that what seems like a favorable deal in the criminal context can have devastating immigration implications.
Securing counsel knowledgeable in both criminal and immigration law is essential before making any decisions about plea agreements. The Law Office of Kevin Dixler can evaluate your case and help you determine the best way to proceed to safeguard both your freedom and your ongoing immigrant status in the United States. To schedule an in depth one hour strategy session with a compassionate and dedicated immigration attorney, contact our firm today at 312-728-4610
