For the more than 44 million noncitizens living in the United States — including lawful permanent residents, visa holders, and undocumented immigrants — a criminal charge is never just a criminal matter. Every arrest, every plea, every conviction carries potential immigration consequences that can be as severe as deportation, permanent bars from re-entry, and loss of immigration status accumulated over years or even decades. This intersection of criminal law and immigration law — called “crimmigration” — is one of the most consequential and misunderstood areas of American law.
Why Criminal Convictions Have Immigration Consequences
The Immigration and Nationality Act (INA) lists specific criminal grounds that make noncitizens “deportable” (removable from the United States) or “inadmissible” (barred from entering or returning to the United States). These grounds are triggered by convictions, pleas, and sometimes even arrests, regardless of whether the person has been in the country for decades, has a U.S. citizen spouse, or has never previously had any immigration issues.
The law treats deportation as a civil consequence, not a criminal punishment — which is why, even after a person has served their prison sentence, the immigration consequences can follow. The Supreme Court has held that deportation, while a severe outcome, is collateral to the criminal proceeding, not punishment for the crime.
The Major Criminal Grounds of Deportability
Aggravated Felonies: The most severe immigration category. Despite the name, many “aggravated felonies” are neither aggravated nor felonies under state law. The INA’s definition of aggravated felony is specific and includes: murder, rape, sexual abuse of a minor, drug trafficking, firearms trafficking, crimes of violence with a sentence of one year or more, theft offenses with a sentence of one year or more, fraud with a loss of $10,000 or more, and many others. A conviction for an aggravated felony makes a noncitizen deportable and bars virtually all forms of relief from removal. Noncitizens with aggravated felony convictions generally cannot be granted asylum, cancellation of removal, or most other forms of immigration relief.
Crimes Involving Moral Turpitude (CIMT): A broad, somewhat vague category defined by courts as crimes involving base, vile, or depraved conduct contrary to accepted moral standards. It includes many theft offenses, fraud crimes, assault with intent to cause serious bodily harm, domestic violence in many circumstances, and others. A single CIMT conviction within five years of admission, or two CIMT convictions at any time, can make a noncitizen deportable.
Controlled Substance Violations: Any drug conviction (with a very limited exception for a single offense of simple possession of 30 grams or less of marijuana) can make a noncitizen deportable. Drug trafficking aggravated felonies are among the most severe immigration consequences, resulting in permanent bars to relief.
Firearms Offenses: Certain firearms-related convictions make noncitizens deportable.
Domestic Violence Offenses: Convictions for crimes of domestic violence, stalking, child abuse, and violation of protective orders make noncitizens deportable — a provision added by the Violence Against Women Act.
Crimes Affecting Immigration Status Directly: Falsely claiming U.S. citizenship and alien smuggling can result in permanent bars to future immigration benefits.
The Padilla Warning: What Criminal Defense Attorneys Must Do
In Padilla v. Kentucky (2010), the U.S. Supreme Court held that criminal defense attorneys are constitutionally required to advise noncitizen clients about the immigration consequences of a plea. If a statute unambiguously provides that a particular offense will result in deportation, the attorney must say so. If the law is unclear, the attorney must advise that the plea may carry immigration consequences.
Failure to provide this advice — or providing incorrect advice — can be grounds for ineffective assistance of counsel claims, potentially allowing the noncitizen to withdraw a plea and renegotiate.
Despite Padilla, many criminal defense attorneys still lack the immigration law expertise to fully advise noncitizen clients. This is why noncitizens facing any criminal charge should ideally have both a criminal defense attorney and an immigration attorney reviewing their situation.
Strategies to Minimize Immigration Consequences
When a noncitizen faces criminal charges, the goal is to identify the immigration consequences of every possible outcome — including every potential plea — and, where possible, to structure the defense to minimize those consequences, even if it means accepting a somewhat worse criminal outcome.
Common strategies include:
Alternative Offense Pleading: Sometimes a defendant can plead to a different offense that carries the same or similar criminal penalty but does not trigger the same immigration consequences. A theft charge might be pled down to vandalism. A drug possession charge might be structured to fall within the marijuana exception.
Sentence Manipulation: For some immigration categories, the length of sentence matters. A conviction for a crime of violence with a sentence of 364 days does not trigger aggravated felony consequences — but the same conviction with a sentence of 365 days (one year) does. Negotiating a sentence of 364 days can be the difference between deportation and maintaining lawful status.
Diversion Programs: Many jurisdictions have diversion programs — drug courts, deferred prosecution, deferred adjudication — that can result in dismissal of charges upon completion. The immigration consequences of diversion vary by jurisdiction and by the specific program, and immigration counsel must evaluate whether a particular diversion program will be treated as a conviction under immigration law.
Post-Conviction Relief: Vacating a prior conviction can eliminate its immigration consequences. Grounds for vacating include ineffective assistance of counsel (including failure to advise about immigration consequences under Padilla), newly discovered evidence, or procedural defects. Immigration attorneys sometimes work with criminal defense attorneys on post-conviction relief years after a plea was entered.
Noncitizens Must Never Assume a Misdemeanor Is “Safe”
Many noncitizens assume that minor convictions — misdemeanors, petty offenses, probation — cannot affect their immigration status. This is dangerously wrong. Many misdemeanors are CIMTs or aggravated felonies under immigration law regardless of how they are classified under state law. A shoplifting conviction might be a misdemeanor under state law but is classified as an aggravated felony (theft offense) under federal immigration law if the potential sentence was one year or more (even if no jail time was actually served).
The safest approach: if you are a noncitizen and you are charged with any crime, consult both a criminal defense attorney and an immigration attorney before entering any plea. The consequences of getting this wrong can last a lifetime.
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