Should a noncitizen of the United States plead guilty in a criminal proceeding?

Unfortunately, there is no easy answer to this question. The answer will depend on the immigration status of the noncitizen and resulting immigration consequences a certain crime may cause after an admission of guilt.

Some factors for a noncitizen to consider when contemplating admitting guilt:

• As indicated, the noncitizen’s current immigration status.
• The sentence or punishment faced if guilt is admitted.
• The evidence the prosecutor possesses to present in a trial.
• If there is a waiver to forgive the immigration consequence caused by an admission of guilt.

Immigration consequences can vary against a noncitizen present in the United States under a lawful status when compared to a noncitizen present under no lawful status. Furthermore, consequences can also vary between a noncitizen present under a temporary immigration status as compared to a noncitizen present in a permanent legal status.

• The fact that a noncitizen is present in the United States without status alone, allows for the government to move to remove the noncitizen.
• Criminal history can influence an immigration enforcement official whether to enforce immigration rules to determine whether to attempt to remove a noncitizen present in the United States without lawful immigration status.
• If removal is prosecuted, certain criminal convictions will forbid an enforcement officer or an immigration judge to grant release from detention while immigration proceedings are pursued.
• If removal is prosecuted, certain criminal convictions can disqualify a noncitizen from applying for certain immigration benefits that could have potentially granted an immigration status or protection to stop removal proceedings also known as deportation proceedings.
• A noncitizen with certain criminal convictions can disqualify the noncitizen from temporary or permanent immigration statuses.
• Certain criminal convictions can disqualify noncitizens that could otherwise qualify for legal permanent resident status or a green card to qualify for a green card and in some cases to qualify for a waiver that could forgive a disqualifying criminal conviction.

Crimes with significant immigration consequences typically include, Drug offenses we discuss here;  aggravated felonies which we discuss here, or, crimes involving moral turpitude which we discuss here. However, there may be other criminal convictions not included as aggravated felonies or as crimes involving moral turpitude as well.

• Certain convictions can expose a noncitizen with lawful status from being removed from the United States.
  • This can be because the issuing embassy or consulate decides to terminate the immigration status previously issued based on the offense or
  • The criminal offense violates an immigration law which allows the government to institute removal proceedings to remove the temporary status and have an immigration judge issue a removal order from the United States.
• If the criminal conviction resulted in loss of an immigration status, the noncitizen would need to re-apply and in some cases seek a waiver of the conviction available only in applications for a temporary visa. We discuss waivers in temporary visa cases here. Most crimes that can result in losing an immigration status include the mentioned crimes involving moral turpitude and aggravated felonies as well drug crimes and other types of violent crimes related to domestic violence or child abuse.

• Certain convictions cause a violation of immigration law which allows the government to institute removal proceedings to remove permanent status and have an immigration judge issue a removal order from the United States.
• Certain convictions not only may expose a noncitizen from losing his status and potential removal, but strict immigration laws will disqualify noncitizens from seeking a waiver which is a manner of forgiveness for the conviction that could have allowed an immigration judge grant back status to the noncitizen. Again, consider crimes involving moral turpitude, aggravated felonies, drug crimes and other types of criminal offenses.
• Certain convictions not only may cause loss of legal permanent resident status but may result in permanently being ineligible from obtaining a green card in the future. These are likely aggravated felonies and many drug related offenses.

We discuss waivers of immigration violations that create ineligibility from a green card here.

Because of potentially significant consequences of losing status, becoming exposed to removal from the United States and perhaps never being able to apply for a future immigration status, creates the necessity to carefully consider admitting guilt. Of course, careful consideration should be given to the evidence that exists against an accused noncitizen and the consequences of taking the case to trial and the potential punishment of a resulting conviction compared to taking a negotiated deal where the punishment is significantly less harsh. Of course, the fact that certain noncitizens in losing their immigration status, may be considered in their view a harsher consequence than any jail time may motivate a noncitizen to pursue more aggressively defending his case to attempt to have the case dismissed through an acquittal after trial or pursue a negotiated deal where the immigration consequences are lessened or eliminated altogether.

What is important to understand is that an attorney with both criminal and immigration experience or an immigration attorney as well as a criminal attorney should be consulted to best determine whether negotiating a deal is in the noncitizen’s best interest or perhaps the immigration consequences are so dire, or the evidence is weak enough to consider taking the case to trial to attempt to be completely absolved of the criminal accusations.