Guilty Pleas and No Contest Pleas Leading to Deportation
If you have been charged with a crime as a foreign national, you may feel tempted to plead guilty or no contest. Many criminal lawyers urge their clients to take a guilty or no contest plea to a lesser offense, rather than risking a conviction for the offense with which they have been charged. However, this may not be a good strategy if a guilty plea to the lesser offense could subject you to removal from the U.S. You may want to consult an immigration attorney before pleading guilty or no contest. While criminal attorneys are constitutionally required to advise foreign national defendants about the immigration consequences of their decisions, they often lack a thorough grasp of immigration law and its nuances.
An arrest does not count as a conviction and probably will affect only your moral character evaluation in a citizenship application. Diversion programs and deferred prosecution or sentencing do not count as convictions. (Deferred adjudication after the completion of community service or other conditions may or may not count as a conviction.) A juvenile conviction also does not count as a conviction unless you were charged as an adult, nor does a violation or infraction count as a conviction. However, you do not need to have been formally found guilty by a judge. If you plead guilty or no contest, or if you admit facts sufficient to support a finding of guilt, this will be considered a conviction if it resulted in some sort of penalty. Sometimes a guilty plea will be officially withdrawn once a defendant completes certain requirements, but this will not undo its immigration consequences as a conviction.
Expunging or Vacating Convictions
Many people who have been convicted of a crime believe that expunging their record will remove all of the consequences of the crime, as though it never happened. This is true in many respects, such as getting a job or an education, but unfortunately it is not true regarding the immigration consequences of the conviction. A foreign national will need to disclose any crimes that have been expunged from their record, and they are treated in the same way as other crimes.
The Supreme Court has held that a conviction may be vacated if the individual’s attorney provided ineffective assistance by failing to inform them of the immigration consequences of a plea bargain.
Sometimes vacating a conviction can prevent any immigration consequences. Vacating a conviction without cause at the discretion of the judge will not help you, but vacating a conviction for cause might save you from deportation. This might happen if a judge finds that your conviction was unconstitutional. Perhaps you were denied the right to counsel, or perhaps another provision in the Bill of Rights was violated. If your criminal attorney fails to advise you about the immigration consequences of a plea bargain, this is automatically considered ineffective assistance of counsel and will support vacating a conviction for cause. (However, this rule applies only to convictions from 2010 or later.)
Another option is pursuing a pardon from the prisoner review board, the state governor, or any other state agency that holds this authority. You might seek a pardon from the president if you have been convicted of a federal crime. Pardons are relatively rare, but they can be sought as a last resort. A pardon wipes out the immigration effects of any criminal conviction, but it may take a long time to obtain. A foreign national may be deported before they receive a pardon.