When it comes to making a plea bargain or no contest plea it could result in getting deported from the United States of America. If a foreigner holds a valid visa, U.S. green card or has no legal immigration status of any kind and has been arrested, be certain to consider the immigration repercussions of pleading guilty or no contest.
Even though criminal defense attorneys may advise such a tactic to assist you in avoiding trial and jail time; it is very important that you also familiarize yourself with whether the conviction to which you agree will end in removal proceedings or if it can be held against you in immigration court.
If you have already made a plea bargain and have been convicted of a crime that can make you deportable, you may need to start looking to see if there is anything else you can do to avoid deportation.
When a Judge's Decision Counts as a Conviction
If a person is arrested for a felony and the charges are dropped or dismissed, it is not lawfully considered a conviction. Some grounds for deporting someone require an actual conviction on one’s record. Regardless, arrests can have serious immigration consequences, especially when you need to prove that you have a good moral character.
Convictions within a juvenile justice system will also not count against you, but if you were charged as an adult while under the age of 18, you could still be put in deportation proceedings.
There is a question that has been asked many times, “What if you were never officially found guilty?” According to the U.S. law (specifically, the Immigration and Nationality Act at I.N.A § 101 (a)(48) or 8 U.S.C. § 1101(a)(48)), a person can be found to have been “convicted” of a crime with or without having been formally judged guilty. If there was no official finding of guilt but you pled guilty or no contest (“nolo contendere”), or if you admitted enough facts for a finding of guilt to be made and the judge ordered some sort of punishment, penalty, payment of court costs, or restraint of liberty against you, you could be viewed as having been convicted of the crime and deported on that basis. This is true even if the plea is later "withdrawn" after you complete court-ordered requirements such as drug or alcohol rehabilitation or counseling.
Pre-plea diversion programs (where an official plea does not need to be entered) and deferred prosecution or sentencing will not be valid as a conviction for immigration purposes. Several states offer different types of deferred adjudication options to traditional sentences in which criminal charges may be dismissed after the individual completes certain conditions such as community service or probation. Whether a sentence under a deferred adjudication strategy can be used against someone for immigration purposes will depend on the type of program and whether that person ever pled guilty. If you were never asked to enter a formal plea, chances are it will not be deemed a conviction under the U.S. immigration law.
Furthermore, certain U.S. states have separate classifications of crimes known as violations or infractions that are not considered criminal convictions for the purpose of immigration proceedings. Such infractions are not handled within traditional courts.
Expungement of a Criminal Conviction
Particular states will permit an individual to request that a conviction be expunged or removed from a criminal record after a certain time frame for maintaining good behavior. While this may help in other areas of a person’s life such as obtaining employment or enrolling in university an expungement of a criminal conviction will not allow anyone to avoid immigration removal proceedings.
Immigration law treats expunged crimes the same as regular convictions. When completing immigration applications for immigrant and non-immigrant visas, it is best to disclose any charges, crimes, convictions, or expungements to avoid additional consequences.
A Vacated Criminal Conviction Might Be Nullified
Whilst it is hard to undo the harm of a crime on a record for immigration purposes, there are still some probabilities that exist. For example, if a conviction is considered unconstitutional for any reason and a judge vacates it “for a cause” you can then request that the immigration court terminate your deportation proceedings (based on that conviction). One common reason for criminal court judges to find that a conviction was unconstitutional is that the defendant was advised inefficiently by his criminal attorney.
If a court judge vacates your conviction for any other non-constitutional grounds, for instance because he or she felt pity for you and did not want to see you get deported, this will not be of any help in an immigration court.
In 2010, the U.S. Supreme Court held the case Padilla v. Kentucky, it was believed ineffective assistance of counsel for a criminal attorney not to advise a client of the immigration consequences of certain criminal convictions prior to advising the client to enter into a plea bargain agreement. That was a vital decision because it helps protect foreigners from pleading guilty to crimes without knowing whether they will become deportable as a result. Moreover, the court’s decision suggested that if you were not provided with information about the immigration repercussions for a conviction, your constitutional rights were infringed upon and you have a sound basis to vacate your conviction.
Regrettably, the Supreme Court ruled in 2013 that Padilla does not apply retroactively. In short, it helps only people whose criminal cases are currently pending. Defendants whose convictions have already become final, that is, who have finalized all appeals or have passed the time when they could file an appeal cannot reopen and challenge their convictions based on ineffective assistance of counsel.
Arrested for a Felony But No Further Action Has Been Taken
If someone has been arrested for a crime that could have negative immigration results most likely because it could be considered either a crime of moral turpitude or an aggravated felony you must take all possible measures to avoid a conviction. Ask your lawyer to see if he is familiar with the immigration consequences of a conviction and whether it is likely to plead a charge down to something that will not make a person deportable.
Several criminal attorneys know little or nothing about immigration law and in most cases, they might not provide advice in the best interest of clients. For example, an attorney will advise his or her client to accept a plea agreement to avoid jail time but not knowing that that could be the worst possible result for a foreigner because a crime to which it is plead guilty for can make a person deportable. If the lawyer representing a client is not experienced with immigration law matters it is good to talk with an immigration attorney.
Speak with an Immigration Attorney
Ask for help from a professional immigration lawyer. If you committed a crime and you are facing court action and you are unsure whether pleading guilty or no contest could lead to a deportation consult with an experienced immigration attorney. Call Gambacorta Law Office today at 847-433-9303, to get the advice and support you need.