How a Criminal Case Can Affect Immigration Status
Federal immigration law defines a “conviction” more broadly than Washington law does. It generally includes any case in which a person pleads guilty or admits sufficient facts and the judge orders some form of punishment or restraint, even if the case is later deferred or dismissed under state law. As a result, some outcomes that look favorable in criminal court can still count against you in immigration court.
Depending on your status and the offense, the consequences can include:
- Removal (deportation), including for lawful permanent residents
- Inadmissibility, which can block a green card application or re-entry after travel abroad
- Bars to naturalization based on the good moral character requirement
- Mandatory immigration detention for certain offenses
- Loss of eligibility for DACA, asylum and other forms of relief
Criminal Offenses That Carry Immigration Risk
Immigration law groups offenses into categories. The same conduct can fall inside or outside a category depending on the exact statute, the language of the plea and the sentence imposed.
- Aggravated FeloniesA federal category that covers many state felonies, and even some lesser offenses, such as theft with a sentence of one year or more
- Crimes Involving Moral TurpitudeOffenses involving fraud, theft or certain intentional harms
- Controlled Substance OffensesNearly any drug offense, with only a narrow exception for small amounts of marijuana
- Domestic Violence OffensesDomestic violence, stalking, child abuse and certain protection order violations
- Firearm OffensesMost offenses involving the possession or use of firearms
- Multiple ConvictionsTwo or more offenses can trigger consequences that a single offense would not
The One-Year Sentencing Threshold
Several aggravated felony categories are triggered by a sentence of one year or more, and immigration law counts suspended time toward that sentence. In a felony case, negotiating a sentence of 364 days or less, rather than a year and a day, can be the difference between a deportable offense and one that is not.
Washington recognized the same problem in 2011, when the Legislature lowered the maximum sentence for a gross misdemeanor from one year to 364 days. That is one reason a reduction from a felony to a gross misdemeanor can protect a client’s status.
Your Right to Immigration Advice in a Criminal Case
In Padilla v. Kentucky (2010), the U.S. Supreme Court held that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea. The Washington Supreme Court applied that rule in State v. Sandoval (2011).
Washington courts also give a general immigration warning before accepting a plea under RCW 10.40.200. That warning is not a substitute for individualized advice about how a specific plea will affect your specific status.
Strategies to Reduce Immigration Consequences
Protecting a client’s immigration status is part of the defense strategy from the first meeting. Depending on the case, that can include:
- Negotiating a plea to an alternative offense that does not fall within a removable category
- Carefully drafting the plea statement and record so they do not admit unnecessary facts
- Seeking sentences of 364 days or less where a one-year sentence would trigger consequences
- Evaluating whether a diversion, deferral or stipulated agreement would still count as a conviction under immigration law
- Coordinating with immigration attorneys and resources such as the Washington Defender Association’s Immigration Project
Speak with a defense attorney before you plead guilty, sign any agreement, travel outside the United States, or apply for an immigration benefit while a criminal case is pending.
Immigration Consequences FAQs
Can a felony plea get me deported even without prison time?
Yes. Immigration law looks at the offense of conviction and the sentence imposed, including suspended time. A conviction for an aggravated felony, a drug offense, a domestic violence offense or a crime involving moral turpitude can trigger removal even when little or no time is served. How the case is resolved often matters as much as the charge itself.
I have a green card. Is my status at risk?
It can be. Lawful permanent residents can be placed in removal proceedings for certain convictions, and a conviction can also affect future travel and a naturalization application.
Does a dismissed case still matter for immigration?
A dismissal without any admission of guilt is generally not a conviction for immigration purposes. However, arrests must still be disclosed on many immigration applications, and some agreements that end in dismissal can still count as convictions. Get advice before agreeing to any resolution.
Should I also talk to an immigration lawyer?
Often, yes. Kimberly Exe handles the criminal case and coordinates with immigration counsel when a client’s status or history calls for specialized immigration advice.
This page provides general information about Washington law. It is not legal advice, and laws change. Contact the office to discuss the specific facts of your case.