Be aware of your immigration status

People may have one of several immigration statuses: citizens, permanent or temporary resident aliens, refugees, non-immigrant visa holders or undocumented aliens. For criminal convictions, the important dividing line is between citizens and others. Citizens cannot be deported or excluded from the U.S. while others can be. You may even be a citizen without knowing it. For example, you may be a citizen under the following circumstances:

  • You were born in the U.S. or a territory (Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands) and raised elsewhere.
  • You acquired citizenship through a parent or grandparent’s birth in the U.S.
  • You acquired citizenship because a parent became a naturalized U.S. citizen while the you were a minor.

Whether you are a citizen on any of these grounds may depend on which version of the immigration statutes was in effect at the time of your birth. In case of any uncertainties, consult an immigration expert.

Some offenses are deportable

The list of deportable offenses for non-citizens is constantly growing. Certain offenses (e.g., trafficking in controlled substances, crimes of violence, sexual abuse of minors, and many fraud and theft offenses) are classified as “aggravated felonies.” A conviction of an aggravated felony results in nearly automatic deportation. Do not assume that a deportable offense will escape the notice of immigration officials. Enforcement priorities change, and cooperation between local and federal immigration officials has been increasing. If not detected while in prison, you conviction may bar your re-entry at the border or your attempt to gain naturalized citizenship.

Plea bargains

You can control deportation consequences to some extent by the terms of a plea bargain or what is stated on the record at the time of the guilty plea colloquy. Also, the the Supreme Court has held that deportation (or, as it is now known, removal) is a “particularly severe penalty” that is “intimately” related to the criminal process and that the Sixth Amendment’s guarantee of the effective assistance of counsel requires that defense counsel investigate and advise non-citizen clients of the immigration consequences of a conviction before the client enters a guilty plea.