One of the most common questions asked by my immigration clients with some criminal history is: “but I already paid the fines and took care of those cases, they are closed. Why should that affect me now?”
Unfortunately, even if you have complied with what the state required of you, there are often immigration consequences to the criminal convictions after the fact.
This becomes especially confusing when talking about a plea in abeyance. In Utah, a plea in abeyance is essentially an agreement wherein a defendant pleads guilty, but no conviction is officially entered. Instead, the defendant is given probation, fines, classes, etc. If the defendant successfully completes the court orders, then the court record shows the case as dismissed.
But not so fast… when we go over to the immigration side of things, even though the state records may say the case was dismissed, in the immigration realm, if the conviction is dismissed for rehabilitative events (like a plea in abeyance) or for immigration hardship, then the conviction is still counted as a conviction in immigration court (See Pickering v. Gonzales 465 F.3d 263 (6th Cir. 2006).
Even if a person does not admit guilt, but pleads no contest, if there is an accompanying punishment, like a fine, restraint on liberty, classes, etc., then it is likely going to be considered a conviction in immigration court. See Immigration and Nationality Act (INA) Section 101(a)(48)(A).
Now, why does all this matter? First, criminal convictions are a huge part of the way the Department of Homeland Security chooses their enforcement priorities. For more information about this see my blog post: What are the chances I will be deported?
To further illustrate the importance, let’s say Bob is a permanent resident of the United States (he has a green card but isn’t a citizen. Bob one day forgets to pay for his big gulp and walks out of the store. The police are called and he gets a charge for retail theft. Bob’s attorney tells him that if he is willing to do community service, then the case will be dismissed. He does the community service and the case is dismissed. The next year, Bob is trying on sunglasses. While trying them on, he leaves a pair on his forehead and walks out. This time he pleads no contest and pays a fine. Two weeks later immigration agents come to Bob’s home, arrest him, and put him in immigration jail. Bob has committed two crimes involving moral turpitude and, even though one was “dismissed” and he never admitted guilt to the second, both are counted as convictions and per INA Section 237(a)(2)(A)(ii) “Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct… is deportable. Please note, INA 237 applies only to aliens legally admitted. For those who are not legally admitted, see INA 212.
Bob may present certain defenses in immigration court, like cancellation of removal for certain permanent residents, but it will be a long, costly, battle. He will first try to get out of immigration jail by requesting a bond, but he will likely be in jail a matter of weeks, or more.
Next, let’s look at the example of Ricky, a hypothetical client in the United States without permission. Ricky has lived in the United States since 1992. He has four children born here. His wife is not a U.S. Citizen. In 1999, Ricky was convicted of a DUI. In 2009, Ricky retained counsel and received an expungement. In 2016, immigration agents come to his home and arrest him. He is now in jail waiting for a hearing for his bond.
The expungement Ricky had does not help in immigration court. His 1999 DUI is still counted as a DUI and immigration decides to hold him without bond until the immigration judge decides differently.
If you have prior criminal history, certain post-conviction remedies do exist to help those in immigration court, however, they must not be deemed as rehabilitative in nature, as are expungements or pleas in abeyance. Instead, it must be because of a legal defect. See Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006). This means that the order from the judge removing or lowering the conviction must show that it is being done because of a constitutional or procedural violations. It cannot be simply for rehabilitative purposes or because of good behavior. This becomes essential when, as immigration lawyers in Utah will explain, a reduction of a conviction is done under Utah Code 76-3-402. It must be under subsection 76-3-402(1). Reductions under 76-3-402(2) may be disregarded by the immigration court and the entire original conviction admitted and used by the Department of Homeland Security to argue for deportation.
As you can see, the intersection between criminal and immigration is extremely complicated. If you are an immigrant and have committed a crime, you should seek out the advice of an experienced immigration attorney who can guide you based on your specific situation.