How A Criminal Conviction Affects Immigration Status

Posted on Oct 22, 2018 by Todd Ver Weire

Breaking the law can result in many consequences including fines, jail time, a suspended driver’s license and more. However, for those residing in the United States as lawful permanent resident (Green Card), a student visa, a work visa, or some other lawful immigration status, meaning you are NOT a U.S. citizen, a criminal conviction can result in significant adverse immigration consequences, such as deportation, non-renewal of your visa, an even disallowing you to re-enter the U.S. if you left for a vacation.

Unfortunately, figuring out what types of convictions will result in what type of consequence is not easy.  When discussing consequences for crimes, we usually focus on the misdemeanor versus felony classification.  This classification system does not work when discussing immigration consequences.  Rather, the specific type of crime that you are accused of committing, along with the potential sentence – not the actual sentence – play a critical role in determining what will occur.

1. Deportation After A Criminal Conviction

In any criminal conviction case, consequences are often an expected outcome of the process. These consequences can range from fines, community service, jail time and more – depending on the charges and circumstances surrounding the case – but if you’re not a citizen, a criminal conviction, and this can mean deferred adjudication probation as well, carries the very real possibility of deportation – especially if you have a prior criminal record.

In cases involving aggravated felonies, which are the most serious crimes in immigration law, a conviction from one of these crimes can lead to deportation or a removal action as it is referred to in immigration law. Immigration status is taken into consideration for criminal charges or convictions, even if the charge isn’t as severe as an aggravated felony. For instance, immigration officials can begin a deportation case against an individual engaging in drug usage, or who is a drug addict, and has no prior criminal convictions. Additionally, crimes of moral turpitude can result in deportation if committed within 5 years of admission into the U.S. For these crimes, generally speaking, it does not matter if the charge is a felony or a misdemeanor.

While it doesn’t fall under a crime of moral turpitude, a string of DWI convictions – whether alcohol or drug-based – can lead to deportation. Immigrants arrested for a DWI can also face what’s called an “immigration hold,” which means they can’t post bail after an arrest. Instead, they will be transferred to federal custody at the end of the term and officials will review immigration status.

When it comes to theft crimes, the potential adverse immigration impact is all of the board.  You would think that theft is theft, and because any theft conviction is a crime against moral turpitude, you would be deported.  Well, that is not quite the case.  For instance, if you were convicted of a Class A misdemeanor theft and the dollar amount was all of $750, it is possible that you would qualify for the petty offense exception under the immigration rules.  Similarly, if you were convicted of debit card/credit card abuse – a type of theft involving the use of another’s credit or debit card, such a conviction is a felony regardless of the amount, but if the amount is all of $200 it could qualify as a petty offense depending upon the type of sentence.  Conversely, if you were convicted of a Class A misdemeanor theft with the value listed as $1,200, you could be deported because of the dollar amount involved.  If you are facing a second theft charge – with one conviction already – a second conviction, even if it is a Class C or Class B theft conviction, could lead to your deportation because it is a second offense.

Because of the impact that a criminal conviction can have on one’s immigration status, you really need to consult with both an experienced criminal defense attorney and an immigration attorney that is experienced with how criminal cases impact your immigration status.  It was not that long ago that the U.S. Supreme Court decided failing to advise a client about the immigration consequences involved with a plea bargain resulted in ineffective assistance of counsel.

2. Impacts On A Citizenship Application

The naturalization or citizenship process in the U.S. requires being of “good moral character.” It should go without saying that a criminal conviction reflects poorly on citizenship applications and may negatively affect the outcome of such application. This can also have a major effect on Deferred Action for Childhood Arrivals (DACA) recipients, who may be working toward citizenship or naturalization. As such, if you are thinking about becoming a citizen, and now have a conviction that did not result in your removal, you are better off waiting five years before filing that citizenship application.

Similarly, a criminal conviction equally has adverse impacts on immigration status when renewing a green card or when applying for a work or tourist visa.  Again, even deferred adjudication probation on a misdemeanor can prevent the renewal of your visa, or approval of your citizenship application.

3. Denial Of Entry Or Re-Entry

If you’ve been convicted of a crime, such as a DWI or a drug possession charge, and you travel to another country, you might be surprised to learn that you might not be allowed back in. That’s right, as a result of a criminal conviction, you can be denied reentry to the United States. Often, misdemeanor crimes of moral turpitude can be used to deny an individual entry or reentry into the country. Due to concerns surrounding drug trafficking, many general convictions for drug possession also result in a denial of entry/re-entry.

While Lawful Permanent Residents cannot be denied re-entry, if they have a criminal record involving certain crimes – such as fraud, theft, assault and battery, drug dealing and more – they can be detained and referred to an immigration hearing, which will determine whether or not the individual should be deported.

You may never think twice of that misdemeanor possession of marijuana conviction before boarding that cruise ship to the Caribbean, however, that conviction can prevent you from being admitted upon your return.  Similarly, if you are a foreign exchange student and go home during the Christmas break, that DWI conviction could prevent you from continuing with your studies.  Don’t presume that just because it is a misdemeanor, or because nothing bad happened initially that things are fine.  You really need to consult with an experienced attorney before leaving the country if you have a conviction.

4. Barred From Entering Neighboring Countries

Unbeknownst to many, your criminal conviction record can ruin your chances at visiting a neighboring country. In addition to denial from entry or reentry into the United States due to a criminal charge or conviction, an individual could also be denied entry into Canada. Therefore, if you have a history of criminal convictions and you arrive at the Canadian port of entry to apply for a visa, your fate upon entry is solely in the Canadian government’s hands.  This is especially true if you have a DWI conviction.  Even though Canada legalized marijuana, they will not allow a non-citizen entry into their country if that individual has a misdemeanor DWI conviction. 

While deportation after a criminal charge or conviction is not guaranteed to happen, it is certainly a real possibility for immigrants in the U.S. Other factors such as your criminal history, immigration status, and the circumstances surrounding your case are taken into consideration when consequences are weighed against your case. However, there is a growing sentiment of denying entry/deport the individual first, as opposed to giving someone a second or third chance.

It’s important to speak with an experienced criminal defense attorney to protect your record and your immigration status before agreeing to any deal.