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Conviction Under Immigration Law

Being convicted when you are not a citizen of the United States can be daunting, especially if you do not have much experience with the justice and immigration system. A conviction is a serious issue, and one that can result in removal proceedings which can impact your ability to get permanent residency or citizenship and possibly lead to removal from the U.S. If you are facing a possible conviction or have any problems with your immigration status, contact Morales & Sparks to speak with an immigration attorney in Texas.

What Is a Conviction Under Immigration Law?

An conviction in immigration law is defined differently than criminal convictions under state law. For example, in many state criminal cases, when a case is dismissed, it is not considered a conviction. For immigration purposes, however, it can still be considered a final conviction in some cases.

The Immigration and Nationality Act defines what constitutes a conviction for immigration purposes. A conviction is defined as follows for non-citizens: “a formal judgment of guilt of the alien entered by a court.” If adjudication of guilt is withheld, a conviction can still happen if:

“(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has 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 to be imposed.”

In addition, the law clarifies that “Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”

In Texas, Deferred Adjudication is considered a final conviction for immigration purposes, so even if under state law you are not considered convicted because your case is dismissed or if you get probation instead of jail time, you will still be considered as having a final conviction under immigration law. In addition, the Board of Immigration Appeals found, in 2017, that entry into a Texas pre-trial diversion program constituted a final conviction when it comes to immigration law. However, Morales & Sparks has successfully argued that not all pre-trial diversion programs in Texas result in a final conviction under immigration law.

What Should You Do If You Have Criminal Charges Filed Against You?

The wrong criminal advice can severely harm your legal status in the United States. One case which illustrates this is Padilla v. Kentucky. In 2001, José Padilla had been a legal resident of the United States for over 40 years when he was arrested for transporting marijuana. His attorney advised him that he did not have to “worry” that pleading guilty and seeking a plea bargain would affect his immigration status. In fact, pleading guilty made removal proceedings almost automatic and in 2004 Padilla filed a legal claim, alleging his attorney had given him the wrong advice. The case went all the way to the Supreme Court which ruled that attorneys must give clients accurate information pertaining to how guilty pleas can impact immigration status.

Before you plead guilty or nolo contendere to any criminal charge, seek the help of a qualified immigration attorney. In fact, as soon as you are charged, contact an attorney who is familiar with both immigration and criminal defense matters. The law office of Morales & Sparks, for example, handles both practice areas, so you can get reliable representation for both your criminal and immigration matter. Contact Morales & Sparks today to talk to an immigration and defense attorney.