What Does it Mean to Have a Conviction Under U.S. Immigration Law

In the aftermath of the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which amended the Immigration and Nationality Act (INA), over the next 20-odd years an unknown number of non-citizens unwittingly pled guilty to crimes without any knowledge of the adverse immigration consequences they could face. For some, a simple trip abroad was all it took to unravel lives built in the U.S.

During this period of time, only immigration attorneys fully understood the dire consequences non-citizens faced if “convicted” of a crime.

On the other hand, criminal defense attorneys were not aware of the impact the 1996 law had on their non-citizen clients. They also had no constitutional duty to warn clients that a conviction could strip them of their legal permanent residency status (LPR or Green Card) or ability to apply for U.S. citizenship.

In fact, it would take until 2010 before the U.S. Supreme Court held that criminal defense attorneys have a legal duty to inform non-citizen clients of the adverse immigration consequences of a criminal conviction.

Definition of Conviction under INA

The definition of a “conviction” under INA is not the same as the definition found in the Illinois criminal code. Rather, the two definitions reflect divergent underlying policy considerations.

Before the 1996 amendment to INA, conviction was not defined at all. When the U.S. Congress finally chose to define the word, it selected the broadest language possible.  Under INA, a conviction is defined as:

… a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where … (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or … admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty … . 8 U.S.C. § 1101(a)(48)(A). (Emphasis added.)

Under the Illinois Criminal Code, a conviction is defined:

[A] judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty … rendered by a legally constituted jury or by a court … without a jury. If judgment is withheld, the plea, verdict, or finding of guilty is not a conviction under Illinois law unless and until judgment is entered. 720 ILCS 5/2-5. (Emphasis added.)

Diverging Policies

Federal Immigration Law

When INA was amended in 1996, Congress believed that U.S. borders were being breached by drug traffickers and that extreme measures were needed to address the situation. Whether the measures it took were justified is debatable. What is not up for debate is that the changes resulted in the criminalization of our immigration system. 

There are only a few instances where pleading (or being found) guilty is not a conviction for immigration purposes:

• Pleading guilty to a city/village code or ordinance violation (does not require proof beyond a reasonable doubt, as required in criminal cases);

• Being adjudicated delinquent in juvenile court (if juvenile is charged as an adult, this exception no longer applies); and

• An administrative finding of child abuse or neglect by DCFS (does not require proof beyond a reasonable doubt).

Illinois Criminal Code

Illinois, like many states, has been creating strategies to minimize or combat the long-term consequences of having a criminal record. These efforts have often relied on “deferred” prosecution strategies (e.g., supervision, special or qualified probation) that avoid saddling a defendant with a conviction.

More recently, Illinois has turned to “specialty courts” to provide deferred prosecution sentences in combination with supportive wrap around services to defendants dealing with such known risk factors such as mental illness and substance abuse – e.g., veterans’ court (PTSD or drug/alcohol addiction), mental health court (undiagnosed or poorly-managed mental health conditions) – to reduce the odds of recidivism.  

INA expressly includes deferred prosecutions in its definition of conviction. It also does not recognize state-based expungement and sealing relief.

Because non-citizens are required to disclose to immigration authorities any interaction they have with law enforcement, non-citizens do not benefit from expunging or sealing their criminal record. As such, immigration attorneys usually discourage clients from seeking this relief if they intend to change their legal status.

Extra Care Must Be Taken When a Non-Citizen is Facing Criminal Charges

Today, criminal defense attorneys (and Illinois judges) must advise criminal defendants of the immigration consequences of pleading guilty to a crime.

In some cases, it may be advisable to consult an immigration attorney. An immigration attorney can play a critical role in crafting a plea agreement that won’t threaten their client’s immigration status. If your criminal defense attorney is not open to working with an immigration attorney, find a new attorney.

Several years ago, I advised a LPR (facing serious felony charges) to consult an immigration attorney. The immigration attorney ended up working closely with the LPR’s defense counsel. Although a plea argument was negotiated, the case went to trial because the victim insisted on it.

Owing to the fact both the prosecutor’s office and the judge were aware of the LPR’s legal status, when it came time to sentence him (he was found guilty of aggravated battery with a weapon) the resulting conviction and sentence did not jeopardize the LPR’s legal status. The immigration attorney’s assistance undoubtedly played a critical role in protecting the client’s immigration status.

For the past couple years, the Cook County Public Defender (PD) has employed immigration attorneys. The PD realized that to properly represent their non-citizen clients it needed such in-house expertise. To that end, non-citizen defendants must disclose their legal status (to defense counsel) as soon as possible.

Not All Convictions are Alike

For immigration purposes, convictions fall into one of three categories: 1) crimes involving moral turpitude (CIMT); 2) aggravated felonies, and 3) petty offenses.[1] The following discussion will focus on CIMTs and aggravated felonies.

CIMT

A CIMT is not defined in INA. It is generally understood to include conduct (actual or intended) involving dishonesty, immorality, or violence. A CIMT can be either a misdemeanor or a felony.

Whether a conviction is a CIMT is a hotly contested and often litigated issue. The determination turns on the statutory elements (not the facts) of the crime. As a result, a crime might be a CIMT in one state but not in another.

Crimes that typically qualify as a CIMT: retail theft, theft, weapon offenses, sex offenses (where the victim is not a minor), indecent exposure, or prostitution.

As a group, drug offenses (misdemeanor or felony) are not CIMTs. They are considered aggravated felonies (see below) with one exception: a single conviction for possession of no more than 30 grams of cannabis is treated as a petty offense.

Because a CIMT turns on its elements, a lay person should not presume to know whether s/he has committed a CIMT without consulting an immigration attorney.

Aggravated Felony

Unlike a CIMT, an aggravated felony is a term of art expressly defined in INA.

The term first appeared in the Anti-Drug Abuse Act of 1988. Initially, the term was intended to help combat foreign narcotics trafficking. As such, only a handful of offenses were labeled aggravated felonies: murder, drug trafficking, trafficking of firearms and other destructive devices.

When INA was amended in 1996, the definition was expanded. Today, the list of aggravated felonies includes: rape; sexual assault of a minor; any drug offense; crimes of violence, forgery, theft or burglary (if sentenced to at least a year in custody); fraud or tax evasion (victim losses exceeding $10,000); and money laundering, to name a few. Someone commits an aggravated felony even s/he is only convicted of attempt or conspiracy to commit the crime.

The consequences of committing an aggravated felony are severe: removal and a permanent bar from reentering the U.S.

The Take Away

Today, most non-citizens understand that getting in trouble with the law is serious cause for concern – especially given the current climate.

It used to be having a Green Card or DACA protection afforded non-citizens certain legal protections. Now, even these protections are being threatened by the Trump administration.

Seeing high-ranking governmental officials routinely demonize and dehumanize non-citizen is shameful. Remaining vigilant and supportive of our non-citizen neighbors is the one thing we still can do.

[1] The petty offense exception is narrowly applied. To qualify for the exception, the criminal offense must satisfy the following: 1) the maximum penalty allowed under law does not exceed 365 days in prison or jail; and 2) the individual did not serve more than six months in custody. This exception only applies to CIMT-like convictions