Immigration Consequences of Arrest or Conviction

The immigration consequences of arrest or conviction depend on your present immigration status, as well as on your race, class, and country of origin. Under many circumstances, the result is expulsion from the United States, often with a permanent or lengthy (five years) restriction on re-entry.

If you entered the United States without a visa or a visa waiver, your chances of being detained by the authorities and then sent home are high. You needn’t have committed any other crime, since being in the country illegally is itself grounds for expulsion.

If you entered the United States legally, but your visa has expired, you are still at high risk of being expelled.

If you do not have a valid visa, be sure to ask your immigration lawyer whether you qualify for “political asylum” or other such programs. To qualify for asylum, you have to show that you would be in extreme danger if you were returned to your native country. There are also programs designed to help non-U.S. citizens who have been abused in the United States, such as victims of domestic violence, or people who have been forced to work against their will as domestic servants, prostitutes, or laborers.

If you entered the United States legally and your visa is still valid, then your immigration consequences depend on the type of visa, the outcome of the case, and the crime(s) of which you’re convicted. If you are merely here on a temporary visa, your risk of expulsion is higher. If you are a lawful permanent resident (have a green card), you have more legal maneuvers available, but you could be still be expelled even though you may have lived in the United States most of your life.

If you are acquitted of the charge(s) against you, there is generally little impact on your immigration status. If you are convicted, then it is more likely that you will be expelled. (Note that if you are sentenced to incarceration, you will have to serve your time before you are sent out of the country.) There are three levels of crime, and convictions for the more serious crimes are obviously worse from an immigration standpoint.

If convicted of a felony (a crime punishable by prison time), the risk of being expelled is high, especially if the offense involves drugs, firearms, violence, sex or dishonesty (like fraud). During a felony case, you should make sure your criminal defense lawyer works closely with an immigration lawyer who’s experienced in criminal issues.

If convicted of a misdemeanor (a crime punishable by a year in jail or less), the chances of being expelled are lower, but you’re still at considerable risk if the offense involves drugs, firearms, violence, sex or dishonesty. Deliberately giving incorrect information to an officer (like a false address or false name) is only a misdemeanor, but it can have serious immigration consequences because the offense involves dishonesty. Remember that while it’s illegal to give false information, it’s okay to give no information. You always have the right to remain silent.

If you are convicted of an infraction (a crime usually not punishable by jail time), you should not have any immigration problems, unless the infraction involves theft or drugs, or the authorities determine that you are undocumented or that your visa has expired. Note that in some states, possession of a small amount of marijuana is merely an infraction, yet because this is a drug crime, it could have an effect on your immigration status.

The immigration consequences of criminal cases are different for minors than for adults. A non-U.S. citizen who is found delinquent (guilty) in juvenile court normally won’t suffer any immigration consequences. However, crimes involving drug trafficking have serious immigration consequences for young people who are not lawful permanent residents. Even being charged with drug trafficking, let alone being proven to have done it, can result in expulsion, denial of re-entry, etc. Also, don’t simply assume that a prior conviction was considered a juvenile offense, just because you were under 18 at the time—the age at which you’re considered an adult varies from jurisdiction to jurisdiction, and minors are sometimes prosecuted as adults for certain offenses (see Rights of Minors).

When plea bargaining, be especially careful about “diversion.” Diversion is a procedure in which you do community service and/or pay an administrative fee, after which the charges against you are dismissed—so you don’t get a conviction on your record. However, if you are not a U.S. citizen, diversion usually counts as a conviction! Non-U.S. citizens must have a local immigration attorney check whether it’s safe to take diversion in their particular region.

Some other procedures equivalent to diversion are “deferred prosecution” and “dispositional continuance.” These programs also usually count as convictions for immigration purposes, if a plea of guilty or no contest is entered at any time. The bottom line is that if you are not a U.S. citizen, you must make sure you understand the exact immigration consequences of any plea bargain you accept. Do not trust a criminal defense lawyer’s advice that a diversion program is safe, unless he has checked with an immigration lawyer—particularly if the diversion involves pleading guilty or no contest.