If you are convicted

There are severe immigration consequences that result from criminal convictions. In fact, the immigration consequences in many instances may be more serious than the criminal consequences.
A criminal conviction, even for a minor misdemeanor or infraction, can result in:
• deportation or exclusion from the United States,
• denial of naturalization,
• ineligibility for various immigration benefits or relief from removal,
• and permanently bar an individual from lawfully returning to the United States.
Therefore, it is important to obtain legal advice from criminal defense counsel and/or immigration counsel regarding the immigration consequences of any pending criminal matter.
What Categories of Immigrants Can Be Deported for Criminal Convictions?

Any person who is not a United States citizen, including lawful permanent residents, can be deported because of a criminal conviction. Lawful permanent residents are immigrants/non-citizens who have been granted permission by the United States government to live and work in the United States for an indefinite period of time. A person must become a lawful permanent resident before becoming a United States citizen. Length of residency in the United States and the existence of close relatives who are U.S. citizens may eventually prevent a non-citizen’s deportation, but it does not prevent the Department of Homeland Security from initiating efforts to permanently remove the individual from the United States.

The Immigration and Nationality Act recognizes three categories of crimes that can place a non-citizen at risk of deportation or prevent a non-citizen from ever becoming a lawful permanent resident.

Aggravated felonies are the most serious crimes and are specifically defined by statute in the Immigration and Nationality Act. Because of the sentence imposed by the state criminal court, some common misdemeanor crimes can be considered aggravated felonies for immigration purposes. These crimes include theft and crimes of violence. For both of these crimes a non-citizen can be placed in deportation proceedings and deported from the United States, if the person is sentenced to more than one-year imprisonment, including any suspended time. A “crime of violence” is a term vaguely defined by the United States Code and could include convictions for assault in the fourth degree and felony driving under the influence.

Crimes of moral turpitude are the second category of crimes that can impact a non-citizen’s ability to remain in the United States. Federal circuit court decisions and the Board of Immigration Appeals define these crimes. Although the case law interpreting the term is not entirely uniform, the following types of crimes have been held to involve moral turpitude:
• crimes (felonies or misdemeanors) in which either an intent to defraud or an intent to steal is an element;
• crimes (felonies or misdemeanors) in which there is an element of intentional or reckless infliction of harm to persons or property;
• felonies, and some misdemeanors, in which malice is an element;
• sex offenses, in which some “lewd” intent is an element.
Thus, murder, rape, voluntary manslaughter, robbery, burglary, theft, arson, aggravated forms of assault, forgery, prostitution and shoplifting have all been consistently held to involve moral turpitude.

The third category of crimes specifically listed in the Immigration and Nationality Act may either trigger deportation or prevent a non-citizen from attaining lawful permanent resident status. Crimes included in this category include violations of any law relating to a controlled substance, domestic violence convictions, judicial determinations of protective order violations and convictions under any law of purchasing, selling, using or possessing a firearm or destructive device.


What is a conviction under Immigration Law.
The definition of "conviction" for immigration purposes is not the same as the definition under criminal law or for other civil purposes. Under immigration law, as with criminal law, a conviction exists where there has been a formal judgment of guilt entered by a court. Additionally, a conviction can exist in situations where the adjudication of guilt has been withheld. This is often done for first-offenders. If the adjudication of guilt has been withheld, it is still considered a conviction for immigration purposes if two elements are met. The first element is that a judge / jury finds a non-citizen guilty, or a non-citizen entered a guilty / no-contest plea, or admitted facts sufficient for a finding of guilt. The second element is that the judge has also ordered some form of punishment or restraint on liberty (like probation, community service, alcohol or anger management classes, fine, etc).
Expungement does not erase conviction.
It is a common misconception that an expungement, or sealing of one's criminal record, will result in a clean record. In fact, if one has ever been arrested / charged / cited / convicted, s/he will have to reveal this fact whenever any immigration forms are filled out and/or any immigration benefits are sought. This will hold true even if the conviction is expunged, sealed, or otherwise deleted from the individual's criminal record. The fact that one's record has been expunged does not erase the arrest or conviction for immigration purposes, except in very limited exceptions. The record still exists and is accessible to law enforcement officials as part of background checks. It is simply no longer a public record available to everyone.
A criminal record that has been expunged makes it more difficult for a defendant and for the USCIS to verify the disposition information. Because of this, it is a good idea to obtain several certified copies of the disposition information prior to the expungement.