Immigration Consequences of
Criminal Offenses
Unit 2: Immigration
Consequences of
Criminal Adjudications

Possible Immigration Consequences of a Criminal Conviction in Texas



DEPORTATION: Forcible removal from the United
States and the imposition of a legal bar from returning to the US for a certain period of time (INA §237(a) [8
USC 1227 (a)]).
INADMISSABILITY: Denial of re-entry to the United
States attempting to return to the US from abroad (INA
§212(a) [8 USC 1182]).
DETENTION: Detention in federal custody pending a deportation hearing (INA §236 [8 USC 1226]).

Possible Immigration Consequences of a Criminal Conviction in Texas
 While any or all of the three consequences noted on the slide before can flow from criminal activity by a client who is a non-citizen, perhaps the consequence that most concerns criminal defense lawyers is deportation .
 Most crime-related deportation grounds requires a “ conviction ” to trigger a basis for deportation, raising the question:

Possible Immigration Consequences of a Criminal Conviction in Texas
WHAT CONSTITUTES A
CONVICTION
FOR
IMMIGRATION PURPOSES?

What is a “ Conviction ” for
Immigration Purposes?
Under the INA, a conviction exists where there has been a formal adjudication of guilt entered by a court or if adjudication has been deferred, where all of the following elements are present:

What is a “ Conviction ” for
Immigration Purposes?
(1)
A judge or jury has found the alien guilty, or the person entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

What is a “ Conviction ” for Immigration
Purposes?
(2) The judge has ordered some form of punishment, penalty or restraint on the person
s liberty to be imposed.
INA § 101(a)(48)(A).

What is a “ Conviction ” for
Immigration Purposes?
JUDGEMENT OF GUILT – PLEA OR VERDICT
(INCLUDING PLEA OF NOLO
CONTENDERE):
YES
INA § 101(a)(48) [8 U.S.C 1101(a)(48)

What is a “ Conviction ” for
Immigration Purposes?
JUDGEMENT OF GUILT – APPEAL PENDING:
NO
Matter of Devison , 22 I&N Dec. 1362 (BIA 2000)

What is a “ Conviction ” for
Immigration Purposes?
DEFERRED ADJUDICATION WITH PENALTY:
YES
Matter of Punu , 22 I&A Dec. 224 (BIA 1998)

What is a “ Conviction ” for
Immigration Purposes?
DEFERRED ADJUDICATION WITH NO PENALTY
IMPOSED:
NO
Provided the court does not order some form of punishment. Payment of court costs would not be considered punishment.
See Mary E. Kramer, Immigration Consequences of Criminal Activity, A guide to
Representing Foreign-Born Defendants, 2 nd Edition, American Immigration
Lawyers Association (2005), at 47.

What is a “ Conviction ” for
Immigration Purposes?
DISMISSAL
NO

What is a “ Conviction ” for
Immigration Purposes?
PRETRIAL DIVERSION (AKA “ DEFERRED PROSECUTION ” or
“ PLEA IN ABEYANCE ” :
NO
Pretrial diversion is not a conviction for immigration purposes as long as the process of securing pretrial diversion does not satisfy both prongs of the definition of conviction set forth in INA § 101(a)(48)(i) and (ii), [8 U.S.C. 1101(a)(48)(i) and (ii)]

What is a “ Conviction ” for
Immigration Purposes?
ADMISSIONS TO THE PROSECUTOR:
NO
See Mary E. Kramer, Immigration Consequences of Criminal Activity, A guide to Representing Foreign-Born Defendants, 2 nd Edition, American
Immigration Lawyers Association (2005), at 48.

What is a “ Conviction ” for
Immigration Purposes?
EXPUNCTION AND RECORD SEALING:
YES
Matter of Roldan , 22 I&N Dec. 224 (BIA 1999)

What is a “ Conviction ” for
Immigration Purposes?
VACATION OF A CONVICTION (ON THE
MERITS):
NO
Matter of Rodriguez-Ruiz , 22 I&N Dec. 1378 (BIA 2000)

What is a “ Conviction ” for
Immigration Purposes?
VACATION SOLELY RELATED TO
IMMIGRATION:
YES
U.S. v. Reyes ,945 F.2d 862 (5 th Cir 1991)

What is a “ Conviction ” for Immigration
Purposes?
JUVENILE DELINQUENCY DISPOSITION:
NO
Matter of Devison , 22 I&N Dec. 1362 (BIA 2000)

What is a “ Conviction ” for Immigration
Purposes?
SUSPENSION OF SENTENCE:
YES
INA 101(a)(48)(B) [8 USC 1101(a)(48)(B)]

Damage Control
 Avoid Identification as Immigrant Subject to Detainer
–
–
Post bail as quickly as possible
Avoid a sentence to jail
– Avoid final conviction if this is the only ground for deportation (except 1 st , 5 th , 7 th Circuits may consider convictions on direct appeal final)
– Avoid disclosure of nationality, immigration status or place of birth, especially during DHS interviews in jail or prison

Damage Control
 DHS Interviews in Jails & Prisons: Advise
Clients of Dos and Don ’ ts
–
–
–
Don ’ t say anything.
Don ’ t sign anything.
Don ’ t lie.
– If you feel that you have to say something, only say, “ I want to talk to my lawyer.
”

Use the Quick Reference Chart
Quick Reference Chart for Immigration
Consequences:
– Look up offense by code section
– Look to Chart to identify immigration consequences
– Avoid Aggravated Felonies, Crimes Relating to Controlled Substances, Crimes Involving
Moral Turpitude, and Crimes Involving
Domestic Violence, Child Abuse, Fraud,
Firearms, Etc.

Resource Links – Where to Go for
Help
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



National Legal Aid & Defender Association
– www.nlada.org
Defending Immigrants Partnership
– www.defendingimmigrants.org
NLG National Immigrants Project
– www.nationalimmigrationproject.org
NYSDA Immigrant Defense Project
– www.immigrantdefenseproject.org
ILGC
– www.ilrc.org