Criminal Convictions in Immigration Law

Criminal defendants seek to minimize possible time in prison and often desire to avoid a risky trial. However, a plea bargain or a plea of no contest may make the defendant deportable or excludable from the United States. For years defendants who had been advised by their criminal attorney to plead guilty or nolo to a crime in order to get the best deal from the criminal law point of view, were shocked to learn that their plea resulted in them being deportable or excludable. In 2010, the US Supreme Court ruled in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) that a criminal attorney failure to advise a non citizen client the immigration consequence of entering a plea is ineffective assistance of counsel.  This ineffective assistance of counsel could be a constitutional basis to set aside guilty plea and conviction.

Not all convictions will make a defendant excludable. The following convictions are not a basis for exclusion:

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What is An Aggravated Felony

The consequences of a conviction of an “aggravated felony” by a non citizen are serious. Under the Immigration & Nationality Act, Many crimes are considered “aggravated felonies.” Consequences include, among others, deportation and a permanent ban on becoming a U.S. citizen.

Aggravated Felonies Under the Immigration & Nationality Act

For immigration matters, the term “aggravated felony” comes from  Federal law. However, most criminal convictions are under state law. An offense that is not “aggravated” under State law, may be “aggravated” under Federal law. To determine if a person will suffer the immigration consequences of an “aggravated “felony” conviction, the state criminal statute under which the person was convicted must be compared to the definition of “aggravated felony.”

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