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:
- the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
- the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
For other crimes enumerated in Section 212 (a) (2) and 237 (a) (2) of the Immigration & Nationality Act, the question arises as to what constitutes a conviction. An arrest followed by the charges being dismissed is not a conviction.
A plea of no contest (“nolo contendere”) with judge ordered punishment such as a fine, community services, payment of court costs, is considered a conviction. In some cases a deal is struck with the prosecutor for a guilty plea to be entered and later withdrawn upon completion of court ordered requirements, such as alcohol abuse counseling. In such a deal, even if the conviction is later withdrawn, it will still be a conviction for immigration purposes. However, if the deal does not require you to enter a pea at all and then the case is dismissed after completion, there is no conviction for immigration purposes.
Some states allow sealing of records or expungement. Neither sealing nor expungement of a conviction will eliminate it for immigration law purposes. The conviction still must be disclosed on any immigration application.