Published November 28, 2018
Foreign nationals who are the subject of a criminal arrest or charges must take proper care to make informed decisions when it comes to consideration of plea deals being offered by the prosecuting entity. That is because convictions for certain crimes may negatively impact the individual’s immigration status in one way or another. In addition to which crimes may lead to negative immigration consequences, foreign nationals must also pay attention to whether the plea deal leads to a “conviction” for immigration purposes, and regardless of how the criminal court may label it.
Foreign nationals who plead guilty to a crime or simply admit facts that add up to the commission of a crime may end up facing negative immigration consequences. These consequences include possible ineligibility for U.S. citizenship or U.S. residence, or even the initiation of removal proceedings. On the other hand, in most cases when a criminal court dismisses criminal charges, the foreign national avoids any immigration consequences. But many times, a foreign national may be advised by a criminal court or criminal defense attorney that the final court disposition obtained may not constitute a criminal “conviction”, although that very result indeed may constitute a conviction for immigration purposes and thus lead to negative consequences when it comes to their immigration status.
For U.S. immigration law purposes, a conviction takes place when there is a “formal judgment of guilt of the alien entered by a court” or “if the adjudication of guilt has been withheld, where a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and….the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed”.
Often times in criminal court a defendant may accept a plea deal where the criminal case is dismissed, but the defendant admitted facts that add up to a crime and faced some penalty or consequence (like a fine or supervision). In such a scenario, the defendant will be told by the court and/or his defense attorney that he has not been “convicted” of any crime. Those circumstances, however, most likely add up to a conviction for immigration purposes because of the foreign national’s admission of certain facts and having a penalty imposed.
Another criminal court scenario where conflicts in definitions and misinformation is rampant involves the significance of having a criminal record “expungement”. By most criminal court and defense attorney definitions, an expunged court record equates into its disappearance, and as if the arrest and criminal proceeding never happened. Again, while that might be true in the world of criminal court proceedings, it is not true for immigration purposes, and too often foreign nationals are led to believe that the expungement of their criminal record relieves them of any responsibility to disclose its existence in the context of an immigration application or proceeding.
The best advice for foreign nationals facing criminal charges is to seek immigration law counsel as early in the proceedings as possible and before potentially life changing decisions are made.
PUBLISHED November 28, 2018– “IMMIGRATION LAW FORUM” Copyright © 2018, By Law Offices of Richard Hanus, Chicago, Illinois