If you are not a U.S. citizen and have been arrested or charged with a crime in Ohio, do not assume that pleading guilty is simply a way to make your criminal case go away.
A guilty plea can have consequences that extend far beyond jail, probation, fines, or a criminal record. Depending on your immigration status, the specific criminal charge, the language of the plea agreement, and the sentence imposed, a criminal conviction can potentially affect your ability to remain in the United States, obtain a green card, become a U.S. citizen, or return to the United States after traveling abroad.
For that reason, noncitizens should consider speaking with an immigration lawyer before pleading guilty to a criminal charge.
This is particularly important in Ohio, where a criminal defense attorney and an immigration attorney may need to consider both the criminal and immigration consequences of a proposed plea.
Can a Criminal Conviction Affect Your Immigration Status?
Yes.
Under U.S. immigration law, certain criminal convictions can have significant immigration consequences. Depending on the circumstances, a conviction may affect whether a noncitizen is:
Removable from the United States
Inadmissible to the United States
Eligible for lawful permanent residence
Eligible for naturalization
Eligible for certain forms of immigration relief
Able to travel internationally without creating additional immigration problems
Able to maintain an existing immigration status
The immigration consequences depend heavily on the specific offense of conviction, the statutory language of the offense, the sentence, and other facts surrounding the case.
The U.S. Department of Justice recognizes that determining the immigration consequences of a criminal conviction can require legal analysis and recommends seeking legal assistance when determining those consequences.
A Guilty Plea Is Still a Conviction for Immigration Purposes in Many Circumstances
One of the most important things for a noncitizen to understand is that pleading guilty can create an immigration-relevant conviction even if the court does not impose jail time.
A person might think:
"If I only get probation, this won't affect my immigration status."
That assumption can be dangerous.
Immigration law has its own definitions of what constitutes a conviction and how particular offenses are treated. The immigration consequences of a criminal disposition cannot always be determined simply by looking at whether someone served time in jail.
The type of offense, the sentence, the plea agreement, and the underlying court records can all matter.
Why Should I Talk to an Immigration Lawyer Before Pleading Guilty?
Criminal defense law and immigration law are closely connected when a noncitizen is charged with a crime.
A criminal defense attorney may be focused on reducing or eliminating the criminal penalties associated with a charge. An immigration attorney may be focused on how a particular conviction could affect the person's immigration status.
Those goals can sometimes point toward different outcomes.
For example, a plea agreement that appears favorable from a purely criminal-law perspective may create serious immigration consequences. On the other hand, a different charge, plea structure, or sentence may potentially produce a different immigration result.
That is why it can be extremely important to understand the immigration consequences of a plea before accepting it.
What Did the Supreme Court Say About Immigration Consequences of Guilty Pleas?
The U.S. Supreme Court addressed this issue in Padilla v. Kentucky, 559 U.S. 356 (2010).
In Padilla, the Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen client about the immigration consequences of a guilty plea. When the immigration consequences are clear, defense counsel must provide appropriate advice regarding those consequences. When the consequences are less clear, counsel must at least advise the noncitizen that the criminal charges may carry adverse immigration consequences.
The Padilla decision is particularly important because it recognizes that immigration consequences can be an essential consideration when a noncitizen is deciding whether to plead guilty.
However, a criminal defense attorney's obligation to advise about immigration consequences does not mean that every criminal attorney is an immigration lawyer.
Immigration law is complicated, and the consequences of different criminal dispositions can depend on details that are not always obvious from the name of the criminal charge.
Why an Immigration Lawyer May Need to Review the Proposed Plea
Suppose someone is charged with a crime in Ohio and receives a plea offer.
The prosecutor may offer to reduce the charge in exchange for a guilty plea. From a criminal-law perspective, the reduced charge might appear substantially better.
But what matters for immigration purposes may be different.
An immigration attorney may need to examine:
The exact statute involved
The proposed offense of conviction
The elements of the offense
The language of the plea agreement
The sentence being proposed
The length of any incarceration
The length and type of probation or supervision
Whether restitution is involved
The person's immigration status
Whether the person is a lawful permanent resident
Whether the person has prior convictions
Whether there are prior immigration proceedings
Whether the person has previously entered the United States after a criminal conviction
Whether the person is seeking a green card or citizenship
Whether the person has a pending immigration application
Whether the person may be subject to removal proceedings
Even seemingly small differences in the criminal disposition can sometimes have significant immigration consequences.
What Immigration Consequences Can Result From a Criminal Conviction?
The answer depends on the specific circumstances, but criminal convictions can potentially affect several areas of immigration law.
Deportation or Removal
Certain criminal convictions can make a noncitizen removable from the United States.
The immigration consequences can be especially serious for lawful permanent residents who have lived in the United States for many years but are not U.S. citizens.
A person may have a green card and still face immigration consequences because of a criminal conviction.
Inadmissibility
Certain criminal conduct can also affect whether someone is considered admissible to the United States.
This can become important when someone is applying for permanent residence, seeking admission to the United States after traveling abroad, or pursuing another immigration benefit.
Green Card Applications
A criminal conviction can potentially affect a person's ability to obtain lawful permanent residence.
If you are applying for a green card while facing criminal charges, it is particularly important to understand how the criminal case could affect the immigration application.
Naturalization and Citizenship
Criminal history can also affect a person's ability to become a U.S. citizen.
For someone who is preparing to apply for naturalization, a criminal conviction may create additional issues that need to be evaluated under immigration law.
A person should not assume that a misdemeanor or a relatively minor criminal case is irrelevant to a future citizenship application.
Immigration Waivers and Other Forms of Relief
Some noncitizens may have potential forms of immigration relief or waivers available to them. Others may not.
A criminal conviction can affect eligibility for certain forms of relief, which makes the decision about how to resolve the criminal case particularly important.
The immigration consequences of a conviction can also depend on the person's broader immigration history.
"But It's Only a Misdemeanor. Can It Really Affect Immigration?"
It can.
The fact that a criminal charge is called a misdemeanor rather than a felony does not automatically mean that it has no immigration consequences.
Immigration law does not simply categorize every offense according to the labels used by a state criminal court.
The precise statute and circumstances of the conviction can matter.
That is one reason noncitizens should avoid making assumptions about the immigration consequences of a criminal charge based solely on whether the charge is a misdemeanor or felony.
"The Prosecutor Offered Me a Plea Deal. Should I Take It?"
Do not make that decision without understanding the consequences.
A plea offer is a proposed resolution of a criminal case. Once accepted and entered as a conviction, however, the consequences may extend beyond the criminal court.
If you are not a U.S. citizen, you should ask your criminal defense attorney about the immigration consequences of the proposed plea and consider having an immigration lawyer review the proposed disposition when appropriate.
The goal is to understand your options before the plea is entered, rather than discovering an immigration problem afterward.
Can an Immigration Lawyer Change a Criminal Plea?
An immigration lawyer generally does not replace your criminal defense attorney in handling the criminal prosecution.
However, an immigration attorney can analyze the potential immigration consequences of different criminal dispositions and communicate those concerns to the criminal defense lawyer.
This can be particularly useful during plea negotiations.
The criminal defense attorney may then be able to discuss potential alternatives with the prosecutor, depending on the facts of the case, applicable law, and what the prosecutor is willing to offer.
The U.S. Department of Justice's discussion of Padilla recognizes the importance of considering immigration consequences during the plea-bargaining process.
What If I Already Pleaded Guilty?
If you already pleaded guilty to a criminal charge and are now worried about your immigration status, speak with an immigration attorney as soon as possible.
Do not assume that nothing can be done.
There are circumstances in which a prior criminal conviction may be challenged or otherwise addressed, but the available options depend on the specific facts and procedural history of the case.
Ohio has a particularly important statute, Ohio Revised Code § 2943.031, concerning the advisement that must be given to certain noncitizen defendants before entering a plea. The Board of Immigration Appeals has recognized that, under certain circumstances, a conviction vacated under this Ohio statute is no longer considered a valid conviction for immigration purposes.
That does not mean that every criminal conviction can be removed or that every noncitizen who was not properly advised automatically has a conviction vacated. The specific circumstances and procedural requirements matter.
If you are concerned about an old conviction, an attorney can review the criminal court records and your immigration history to determine what issues may exist.
What Should I Tell My Criminal Defense Lawyer?
If you are not a U.S. citizen, tell your criminal defense attorney before entering a plea.
Your lawyer should know your immigration status.
For example, tell your attorney if you are:
A lawful permanent resident (green card holder)
In the United States on a temporary visa
An asylum applicant
A refugee
A person with Temporary Protected Status
A person with DACA or another form of deferred action
An undocumented immigrant
Waiting for an immigration application to be decided
In removal or deportation proceedings
Applying for a green card
Preparing to apply for citizenship
You should also tell your attorney about any previous criminal convictions and immigration proceedings.
Do not assume that information about your immigration status is irrelevant to your criminal case.
What Should I Ask an Immigration Lawyer Before Pleading Guilty?
If you are a noncitizen facing criminal charges, consider asking an immigration attorney:
Could this criminal charge make me removable?
Could a conviction make me inadmissible?
Could this affect my green card?
Could this affect a future citizenship application?
Could this affect an immigration application I already have pending?
Could I be detained by immigration authorities?
Does the proposed sentence affect the immigration consequences?
Would a different criminal charge potentially have different immigration consequences?
Are there immigration-safe alternatives that my criminal defense attorney should consider?
What could happen to my immigration status if I accept the plea?
The answers will depend on your individual circumstances.
Do Not Wait Until After the Guilty Plea
One of the biggest mistakes a noncitizen can make is waiting until after entering a guilty plea to investigate the immigration consequences.
Once a plea has been entered, changing the outcome can become significantly more complicated.
The U.S. Department of Justice's materials discussing Padilla v. Kentucky emphasize that understanding immigration consequences before a plea can help ensure that defendants make informed decisions and can be important in the plea-bargaining process.
If immigration status is important to you, it should be considered before you agree to a criminal disposition.
Criminal Charges and Immigration Status: Get Legal Advice Before You Plead
If you are an immigrant or other noncitizen facing criminal charges in Ohio, the most important thing to remember is that your criminal case and immigration case may be connected.
A criminal conviction that appears manageable from a criminal-law perspective could have consequences for your immigration status. Before accepting a plea agreement, make sure you understand those potential consequences.
At Robert W Legal, Ohio attorney Robert Wisniewski represents clients in criminal and immigration matters. If you are a noncitizen facing criminal charges, obtaining legal advice before entering a plea can help you understand how the proposed resolution may affect your immigration situation.
If you are facing criminal charges in Ohio and are concerned about your immigration status, contact Robert W Legal to discuss your case with attorney Robert Wisniewski before entering a guilty plea.
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.
