Criminal Convictions And Immigration Consequences

December 2010 - By Rajan Joshi

If a person is not a United States Citizen, a criminal conviction can subject them to deportation/removal from the United States . If a person has been convicted of certain criminal offenses, including simple or domestic battery, they may be subject to deportation regardless of how long ago the criminal conviction occurred, or how long they have been in the country. Moreover, if a person was convicted for a criminal offense that would not automatically subject them to deportation/removal proceedings if they remain in the U.S., that same conviction could lead them to get deported/removed if they leave the US and try to re-enter. A withhold of adjudication counts as a criminal conviction under the Immigration and Nationality Act, even where the record of conviction was sealed.

A person who has entered a plea of guilty or no contest to a criminal charge may have legal grounds to withdraw their plea if they had not been advised by the Judge, or their attorney, prior to entering the plea, that their plea could subject them to deportation. Prior to October 26, 2006, the law allowed a person; two years from the date they were threatened with deportation from the immigration officials, to file a motion to withdraw their plea. On October 26, 2006, the Florida Supreme Court in State v. Green severely reduced that time to two years from the date of the conviction. Under extreme situations, there may be ways to get around his time limit, but it is extremely challenging and unlikely.

If you or your family are not United States Citizens and have previously entered a plea to a criminal charge, you may be subject to deportation. However, you may still be able to withdraw your plea if you were not properly advised or were misadvised of the deportation consequences by the judge or by your criminal defense attorney. You may also be entitled to withdraw your plea if other procedural errors exist or there has been newly discovered evidence that was not known at the time of the plea, could not have been discovered through due diligence and if you had known about this evidence you would have elected to proceed to trial instead of entering into a plea. The timeframe and ultimate deadline for filing such a motion is extremely limited. If you are not a United States Citizen and have a criminal record, it is important that you discuss with an attorney what consequences that criminal record will have on your ability to remain in the United States, and what options you may have.