When you are facing criminal charges, the first instinct is often to conclude the ordeal as soon as possible. Facing the legal system in this adversarial manner is often terrifying, and that is especially true if you are not a citizen. One way these matters conclude quickly is through plea bargains or agreeing to a lesser offense in order to avoid stiffer penalties and drawn-out trials. Unfortunately, this easier way out for citizens often results in deportation for those who are not.
“CONVICTION” DEFINED BROADLY
The Immigration and Nationality Act defines “conviction” as a formal judgment of guilt. It can include a plea of guilty but also no contest, which is made when facts do not support an effective defense. Basically, there does not need to be a formal process of a trial and guilty verdict by a jury. The seemingly cooperative approach of a plea bargain also falls under “conviction.”
Your conviction status remains even if pleas are withdrawn later. For example, if you are pulled over for driving under the influence and agree to alcohol assessment and treatment instead of sentencing, that will withdraw your guilty plea as far as the criminal court is concerned. However, in the immigration sphere, you will still be considered guilty of the offense.
Vacated criminal convictions and expungements are also not guarantees against deportation. The only way a vacated criminal conviction will stop deportation proceedings is if it was vacated for cause. For example, if a judge rules your constitutional rights were violated during arrest or trial, that would vacate your conviction for cause. You can take that order to the immigration hearing to terminate the deportation proceedings.
However, if a judge vacates your conviction solely to avoid deportation proceedings, that will not count in immigration court. Also, expunged convictions are still considered regular convictions under U.S. immigration law.
PROCEED WITH CAUTION
It is very easy to get caught up with wanting your criminal matter concluded at any cost. While getting charges vacated or expunged solves most problems for citizens, it causes new ones for non-citizens. Your only option if you cannot get a conviction vacated for cause is to seek a pardon, but that process can take years.
To complicate matters further, a standard criminal defense attorney may not have sufficient background in immigration law. In other words, while attempting to represent your best interest, your attorney may inadvertently cause your deportation.
That is why if you are facing criminal charges, you need to consult with an immigration attorney before making any final decisions. Your immigration attorney will know whether your new plea deal risks deportation.
Sometimes, a plea deal will work out well for you. Traffic infractions are lesser charges that do not rise to immigration proceedings. So if you plead guilty to running a stop sign (which is an infraction), as a way to avoid reckless driving charges (a misdemeanor or felony), it is unlikely that you will attract the attention of immigration services.
To secure the full picture on how your criminal charges will affect your immigration status, contact us.