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Does your criminal conviction count for immigration purposes?

As immigration attorneys, we have always heard the familiar phrase “ I did not know that what I pled guilty to would cause me to be deported.” This phrase is usually followed by, “I didn’t even understand that I pled guilty.”

It is usually the immigration lawyer that has to advise clients that most criminal convictions, whether it is a misdemeanor or felony, render lawful permanent residents of the United States subject to removal from the United States to their home country.

Where a criminal conviction poses such a threat to a lawful permanent resident, and there is no relief from deportation, the resident may seek to have the conviction overturned or the plea withdrawn by the criminal court so that he or she will no longer be subject to removal from the United States. However, where the criminal court has set aside a conviction, the Immigration Court will not necessarily eliminate the criminal conviction for immigration purposes, and the lawful permanent resident may still be subject to removal from the United States.

If a court sets aside an alien’s conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes. The setting aside of a plea will vacate the conviction for immigration purposes as long as it was not done pursuant to a rehabilitation statute. Although setting aside a plea will eliminate a conviction for immigration purposes even in drug cases, a conviction cannot be simply expunged in order to be effective in Immigration Court. In other words, a criminal attorney has to make a motion to the court and argue that their client’s due process rights were violated. That in fact something was done wrong in the criminal proceedings.

In most instances, the Immigration Court will want to see the Minutes (the record from the criminal court) stating why the criminal court set aside judgment or why the guilty plea was withdrawn to ensure that the setting aside of the criminal conviction was not for rehabilitative or immigration hardship purposes. A rehabilitative or immigration hardship purpose is when the conviction has been set aside because the individual completed a sentencing program such as jail time or probation, or because the state has a rehabilitation statute that provides setting aside convictions after a certain period of time, or because it was a mere first- offender conviction.

A due process violation or procedural or substantive defect in the underlying criminal proceedings must have been the basis for setting aside the conviction for an immigration court to eliminate the conviction for immigration purposes. For example, a guilty plea that has been withdrawn upon the ground that it was obtained in violation of constitutional rights under the Fourteenth Amendment Due Process clause of the U.S. Constitution will be a procedural or substantive defect for which a conviction can be set aside for immigration purposes. Another example of a conviction that can be set aside for immigration purposes is where a defendant was denied his or her constitutional right under the Sixth Amendment because the defendant had not been informed of the nature of the underlying charge or because the court failed to obtain a factual basis or because the defendant’s Sixth Amendment right to effective assistance of counsel was violated. A guilty plea must be knowingly, intelligent, and voluntarily made before the criminal court. A plea withdrawn on any of those grounds would be eliminated for immigration purposes.

If you are a legal permanent resident of the United States and believe that your criminal conviction could render you removable from the United States, before you have your criminal conviction set aside by a criminal court, be sure to find out why it is being set aside and whether the immigration court will consider it eliminated for immigration purposes.

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