Skip to main content

When is a state proceeding not criminal under state law result in a conviction for immigration purposes?

A lawyer and clients looking at criminal convictions

Regardless of how state law defines a state court proceeding, a finding of guilt in a proceeding that affords defendants all of the constitutional rights of criminal procedure that are applicable without limitation and that are incorporated against the States under the Fourteenth Amendment is a “conviction” for immigration purposes. We have previously discussed what are typically considered convictions for immigration purposes here.

What is considered a criminal court proceeding?

A formal judgment of guilt entered by a court qualifies as a conviction for immigration purposes when it was entered in a ‘genuine criminal proceeding,’ that is, a proceeding that was ‘criminal in nature under the governing laws of the prosecuting jurisdiction.

A proceeding is “criminal” by reference to minimal protections under those rights of criminal procedure guaranteed by the Constitution—as incorporated against the States by virtue of the Fourteenth Amendment—and which are applicable without limitation in all criminal prosecutions.

What are the minimum constitutional criminal protections?

These minimum constitutional criminal protections include: proof beyond a reasonable doubt; the rights to confront one’s accuser, a speedy and public trial, notice of the accusations, compulsory process for obtaining witnesses in one’s favor, and against being put in jeopardy twice for the same offense.

Therefore, a state law proceeding would not result in a conviction for immigration purposes where the lesser standard of proof of a preponderance of the evidence is required instead of the higher standard of proof of beyond a reasonable doubt.

Some rights are contingent. For example, the right to a jury trial applies only if the charged offense is deemed “serious,” and the right to counsel applies only if a conviction can result in loss of liberty.

Whether the state proceeding is considered criminal to result in potential immigration consequences is an issue that one of our qualified immigration attorneys with experience in criminal law can help in determining for you.

FREE Visa Resources

Click on the buttons below in order to claim your free Visa Guide (E-1, E-2, TN, EB-5, H-1B, L-1, PERM, NIW, EB-1, O-1, E-3), sign up for our free Webinar, join our Facebook Group, or watch our videos.

Download FREE Visa Guide
Sign Up For Our Webinar
Join Our Facebook Group
Watch Our Videos

Set up a Visa or Green Card Consultation

For a dedicated one-on-one consultation with one of our lawyers, click on the button below to schedule your consultation.

Schedule a consultation

This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.

Leave a Reply