If you are not a U.S. citizen and have been arrested or charged with a crime, the consequences of a conviction can extend far beyond the criminal penalties imposed by an Ohio court.
A criminal conviction can have serious immigration consequences, including potential removal from the United States, problems obtaining a green card, difficulty returning to the United States after international travel, and complications with a future application for U.S. citizenship.
For immigrants and other noncitizens, it is therefore important to consider both the criminal and immigration consequences of a criminal charge before accepting a plea agreement or entering a guilty plea.
At Robert W Legal, Ohio attorney Robert Wisniewski represents clients in criminal and immigration matters and can help noncitizens understand how a criminal case may affect their immigration situation.
Can a Criminal Conviction Affect My Immigration Status?
Yes. Depending on the offense and the circumstances of the case, a criminal conviction can affect a person's immigration status.
U.S. immigration law contains several provisions that make certain criminal convictions relevant to:
Deportation or removal
Inadmissibility
Green card applications
Adjustment of status
Naturalization and citizenship
Immigration waivers
Certain forms of immigration relief
Reentry into the United States after international travel
The consequences depend on the specific offense of conviction, not simply on whether a person considers the crime to be "serious" or "minor."
Immigration courts and agencies may have to examine the statute of conviction and, in appropriate circumstances, documents from the criminal case to determine how an offense is treated under immigration law.
That is why it is important not to assume that a particular criminal charge is harmless to your immigration status.
What Types of Criminal Convictions Can Cause Immigration Problems?
There is no simple list that applies to every noncitizen.
Different categories of criminal offenses can have different immigration consequences. Depending on the circumstances, issues can arise from convictions involving:
Crimes involving moral turpitude
Aggravated felonies
Controlled substances
Domestic violence
Child abuse or neglect
Certain firearms offenses
Certain theft or fraud offenses
Certain crimes involving violence
Certain offenses involving sexual conduct
Multiple criminal convictions
The immigration consequences can also depend on the sentence imposed, the date of the conviction, the person's immigration history, and the particular immigration benefit or status at issue.
For example, U.S. immigration law has specific provisions addressing crimes involving moral turpitude and aggravated felonies. The Board of Immigration Appeals has developed extensive case law concerning how individual criminal statutes are analyzed for immigration purposes.
A Misdemeanor Can Still Have Immigration Consequences
One common misconception is that only felony convictions affect immigration status.
That is not necessarily true.
Certain misdemeanor convictions can create immigration problems even when the person receives probation rather than jail time.
Whether a misdemeanor affects immigration status depends on the particular offense, the sentence, and the person's circumstances.
For example, immigration law can treat certain crimes involving moral turpitude differently depending on factors such as the maximum possible penalty, the sentence actually imposed, and whether statutory exceptions apply.
Therefore, you should not assume that a misdemeanor is automatically safe for immigration purposes.
Can a DUI or OVI Affect Immigration Status?
A DUI or OVI charge can raise immigration issues, but the consequences depend on the specific circumstances.
A person should not assume that an OVI is either automatically immigration-safe or automatically grounds for deportation.
The analysis may depend on the exact statute of conviction, the person's immigration status, the sentence, whether there are multiple convictions, and whether other criminal or immigration issues are present.
If you are an immigrant facing an OVI/DUI charge in Ohio, it is important to discuss the case with an attorney before entering a plea.
Can a Drug Conviction Affect Immigration?
Drug-related convictions can create particularly serious immigration concerns.
Federal immigration law contains specific provisions concerning controlled-substance offenses. Depending on the circumstances, a drug conviction can potentially create grounds of inadmissibility or removability and may affect eligibility for certain forms of immigration relief.
The exact substance, statute, offense, conviction, and circumstances can matter.
Because drug offenses can have significant immigration consequences, a noncitizen facing a drug charge should obtain legal advice before accepting a plea agreement.
Can a Domestic Violence Conviction Affect Immigration?
Domestic violence convictions can also create immigration consequences.
Federal immigration law specifically addresses certain convictions involving domestic violence, stalking, child abuse, child neglect, and child abandonment.
For an immigrant facing a domestic violence charge in Ohio, it is important to understand the potential consequences before resolving the criminal case.
A plea that appears favorable from a criminal-law perspective could potentially create immigration problems depending on the exact offense and disposition.
What Is an Aggravated Felony for Immigration Purposes?
One particularly important concept in immigration law is the "aggravated felony."
The term can be confusing because an "aggravated felony" is an immigration-law classification. It does not necessarily correspond directly to how an offense is classified under Ohio criminal law.
Federal immigration law contains a lengthy statutory definition of aggravated felony offenses.
Depending on the particular offense, an aggravated felony conviction can have extremely serious immigration consequences, including potential removal and limitations on certain forms of immigration relief.
Determining whether a particular conviction qualifies as an aggravated felony can require a detailed legal analysis. Immigration adjudicators may apply the categorical or modified categorical approach when analyzing certain criminal convictions.
This is one reason that simply looking at the name of an Ohio criminal offense may not be enough to determine its immigration consequences.
What Is a Crime Involving Moral Turpitude?
Another important immigration-law concept is the crime involving moral turpitude.
There is no single simple definition that can be applied to every criminal statute.
The Board of Immigration Appeals has developed case law addressing how immigration adjudicators determine whether particular offenses qualify as crimes involving moral turpitude. In appropriate cases, the analysis can involve examining the statutory elements of the offense and, under applicable approaches, the relevant record of conviction.
Because the classification can affect removability, inadmissibility, and other immigration issues, a noncitizen should have the specific offense reviewed rather than relying on the common-language description of the crime.
Can a Criminal Conviction Prevent Me From Getting a Green Card?
It can.
A criminal history may affect an application for lawful permanent residence, commonly called a green card.
The impact depends on the offense, the person's immigration history, the manner in which the person is seeking permanent residence, and other factors.
For example, a person applying for adjustment of status may have to establish that they are not inadmissible under applicable provisions of immigration law.
A criminal conviction can potentially create an inadmissibility issue.
However, not every criminal conviction automatically prevents someone from obtaining a green card. There are exceptions, waivers, and other legal considerations that may apply depending on the circumstances.
Can a Criminal Conviction Affect U.S. Citizenship?
Yes.
Criminal history can also affect an application for naturalization and U.S. citizenship.
Applicants for naturalization generally must satisfy statutory requirements concerning good moral character, among other requirements. Certain criminal conduct can affect whether an applicant meets those requirements.
A person should therefore consider the potential citizenship consequences of a criminal case even if they currently have a green card and are not facing immediate removal proceedings.
An offense that does not result in immediate removal can still create complications when a lawful permanent resident later applies for naturalization.
Can Immigration Consequences Occur Even Without Jail Time?
Yes.
One of the most important things for noncitizens to understand is that avoiding jail does not necessarily mean avoiding immigration consequences.
A criminal disposition can have immigration consequences even when the sentence involves:
Probation
Fines
Community service
A suspended sentence
A short jail sentence
No additional incarceration
Immigration law has its own rules for determining what constitutes a conviction and how particular offenses are treated.
The fact that an Ohio judge does not send someone to prison does not, by itself, determine whether immigration consequences exist.
What Happens If I Plead Guilty?
For a noncitizen, a guilty plea should never be treated as merely a way to finish a criminal case.
A guilty plea can result in a conviction that has immigration consequences.
The U.S. Supreme Court addressed this issue in Padilla v. Kentucky, holding that the Sixth Amendment requires criminal defense counsel to advise noncitizen clients about the immigration consequences of guilty pleas.
This means immigration consequences can be an important part of the plea-bargaining process.
Before accepting a plea agreement, a noncitizen should understand:
What criminal offense they would be convicted of.
What sentence would be imposed.
Whether the conviction could create immigration consequences.
Whether another criminal disposition might have different immigration consequences.
Whether the conviction could affect a pending or future immigration application.
Ohio Law Provides an Immigration Advisement Before Certain Pleas
Ohio has a specific statute addressing immigration consequences when a noncitizen enters certain guilty or no-contest pleas.
Under Ohio Revised Code § 2943.031, before accepting certain felony and misdemeanor pleas, the court generally must advise a defendant who is not a U.S. citizen that a conviction may have consequences including:
Deportation
Exclusion from admission to the United States
Denial of naturalization
The statute also provides that, in certain circumstances, a defendant may move to set aside the judgment and withdraw the plea if the required advisement was not provided and specified requirements are satisfied.
This Ohio statute is important, but the existence of the advisement does not replace the need for individualized legal advice.
The advisement warns that immigration consequences may exist. It does not necessarily explain exactly what those consequences will be in a particular person's case.
What If I Have a Green Card?
Having a green card does not necessarily protect you from immigration consequences resulting from a criminal conviction.
A lawful permanent resident can, in certain circumstances, become subject to removal proceedings because of a criminal conviction.
The potential consequences depend on the offense, the conviction, the sentence, and the person's immigration history.
Green card holders should therefore take criminal charges seriously even if they have lived in the United States for many years.
If you are a lawful permanent resident facing criminal charges in Ohio, consider speaking with an attorney before entering a plea.
What If I Am Undocumented?
If you are undocumented and charged with a crime, it is especially important to obtain legal advice before making decisions in the criminal case.
A criminal conviction may affect whether you are subject to removal and whether you qualify for particular forms of immigration relief.
However, the consequences depend on the specific circumstances.
Being undocumented does not mean that every criminal conviction will have the same result, and a criminal charge does not necessarily mean that removal is automatic.
An immigration attorney can evaluate the criminal charge alongside your immigration history and determine what issues may need to be addressed.
What If I Have a Pending Immigration Case?
If you have an immigration application or proceeding pending, a criminal charge can create additional concerns.
This can include people who are:
Applying for a green card
Applying for U.S. citizenship
Seeking asylum
In removal proceedings
Applying for an immigration waiver
Applying for another immigration benefit
Waiting for an immigration interview or decision
A new arrest or conviction can potentially affect the immigration process.
If you have a pending immigration case and are charged with a crime, tell your criminal defense attorney about the pending immigration matter and consider obtaining immigration advice before resolving the criminal case.
Can an Immigration Lawyer Help With a Criminal Case?
An immigration attorney generally does not take the place of your criminal defense attorney in the Ohio criminal court.
However, an immigration attorney can help identify immigration consequences that should be considered when evaluating a criminal case.
For example, an immigration attorney may review a proposed plea and explain whether the conviction could potentially affect:
Your immigration status
Your ability to obtain a green card
Your ability to naturalize
Your eligibility for immigration relief
Your ability to return to the United States
Your exposure to removal proceedings
Your criminal defense attorney can then consider that information when discussing potential resolutions to the criminal case.
In some situations, having both criminal-defense and immigration perspectives can be particularly important.
What Should I Do If I Am Charged With a Crime in Ohio?
If you are not a U.S. citizen and have been charged with a crime in Ohio, consider taking the following steps:
1. Tell Your Criminal Defense Lawyer That You Are Not a U.S. Citizen
Do not assume that your attorney already knows your immigration status.
Tell your lawyer whether you are a lawful permanent resident, visa holder, asylum applicant, refugee, undocumented immigrant, or have another immigration status.
2. Do Not Accept a Plea Without Understanding the Consequences
Before pleading guilty or no contest, ask about the potential immigration consequences.
3. Get the Exact Criminal Charge
The precise statute matters.
A general description such as "theft," "assault," or "drug charge" may not be enough to determine the immigration consequences.
4. Provide Your Immigration History
Tell your attorney about previous immigration applications, removal proceedings, prior convictions, and other relevant immigration matters.
5. Consider an Immigration Consultation
If you are not a U.S. citizen, consider having an immigration lawyer review the proposed criminal disposition before you enter a plea.
Can an Old Criminal Conviction Still Affect Immigration?
Yes.
An old conviction may still be relevant to an immigration case.
The effect of an old conviction can depend on the type of offense, when it occurred, the sentence, subsequent criminal history, and the particular immigration benefit or proceeding involved.
For example, a lawful permanent resident who was convicted years ago may discover that the conviction becomes relevant when applying for citizenship or dealing with an immigration proceeding.
Do not assume that a conviction is irrelevant simply because it is several years old.
What If My Criminal Conviction Already Happened?
If you already have a criminal conviction and are concerned about immigration consequences, you should have the conviction reviewed by an attorney.
Depending on the circumstances, there may be legal issues involving the validity of the conviction, the plea, the sentence, or the immigration classification of the offense.
Ohio Revised Code § 2943.031 may also be relevant in certain cases involving pleas by noncitizens where the required immigration advisement was not provided.
Whether any remedy is available depends on the specific facts and procedural history of the case.
Criminal Convictions and Immigration Consequences: Get Legal Advice Before You Plead
For noncitizens, a criminal case can become an immigration case.
A conviction can potentially affect your ability to remain in the United States, obtain a green card, become a U.S. citizen, or receive other immigration benefits.
The consequences are highly fact-specific. The same type of criminal charge can affect two people differently depending on their immigration status, criminal history, the precise statute of conviction, and the sentence.
That is why immigrants facing criminal charges in Ohio should consider the immigration consequences before accepting a plea agreement or entering a guilty plea.
Speak With an Ohio Criminal and Immigration Lawyer
At Robert W Legal, attorney Robert Wisniewski represents clients in Ohio in criminal defense and immigration matters.
If you are a noncitizen facing a criminal charge, a consultation can help you understand the potential criminal and immigration consequences of your situation and the legal options that may be available.
Contact Robert W Legal to schedule a consultation with attorney Robert Wisniewski if you are facing criminal charges in Ohio and are concerned about your immigration status.
This article is for general informational purposes only and is not legal advice. Immigration and criminal law are highly fact-specific, and the consequences of a particular conviction depend on the applicable law and the circumstances of the individual case. Reading this article does not create an attorney-client relationship. If you are a noncitizen facing criminal charges, consult with a qualified attorney before entering a plea.
Frequently Asked Questions
Can a criminal conviction cause deportation?
Certain criminal convictions can make a noncitizen removable from the United States. Whether a particular conviction creates a basis for removal depends on the offense, the applicable immigration statute, and the person's circumstances.
Can a misdemeanor affect immigration status?
Yes. Certain misdemeanor convictions can have immigration consequences. The classification of the offense, sentence, and other circumstances must be examined.
Can a DUI affect my green card?
It can raise immigration issues, although the consequences depend on the specific facts, conviction, sentence, immigration status, and other circumstances.
Can a drug conviction affect my immigration status?
Yes. Drug-related convictions can create serious immigration consequences under federal immigration law. The specific substance, statute, conviction, and circumstances are important.
Should I tell my criminal lawyer that I am not a U.S. citizen?
Yes. Your immigration status can be highly relevant to the potential consequences of a criminal conviction.
Can I be deported after a criminal conviction?
Certain criminal convictions can create grounds for removal. A lawyer should review the exact conviction and your immigration history to determine whether immigration consequences may apply.
Can I get a green card with a criminal record?
Possibly. A criminal record does not automatically prevent every person from obtaining a green card, but certain convictions and circumstances can create inadmissibility or other problems.
Can a criminal conviction affect U.S. citizenship?
Yes. Certain criminal conduct can affect the good-moral-character requirement and other aspects of a naturalization application.
What should I do before pleading guilty to a crime in Ohio?
If you are not a U.S. citizen, discuss the potential immigration consequences with your criminal defense attorney and consider obtaining an immigration-law analysis before entering the plea.
Can an Ohio criminal conviction be changed or vacated because of immigration consequences?
In some circumstances, legal remedies may exist, including issues involving Ohio Revised Code § 2943.031. Whether a remedy is available depends on the particular case.
This article is for general informational purposes only and does not constitute legal advice. Every criminal case is different, and the law may change. If you are facing criminal charges or an investigation, consult an attorney about the specific facts of your situation.
