Deportation Risk Assessment: Criminal Charges and Immigration Consequences

Deportation Risk Assessment: Criminal Charges and Immigration Consequences

The phone call came at 3am. Your husband had been arrested. The officer mentioned something about bail, but then said those words that made your stomache drop: “ICE has been notified.”

Or maybe it was you who got pulled over for what you thought was a minor traffic violation, but now your sitting in county jail and the public defender just told you that pleading guilty could mean loosing your green card.

When criminal charges and immigration status collide, your facing two seperate legal systems at the same time. And here’s what most people don’t realize untill its to late: your criminal defense attorney might not know anything about immigration law, and the plea bargain they’re pushing could be the exact thing that gets you deported.

This isn’t about whether you committed a crime or not. Its about understanding which crimes trigger deportation, how to assess you’re personal risk level right now, and what steps you can take—starting today—to protect yourself and your family from being torn apart.

The immigration consequences of criminal charges is more complicated then most attorneys realize. A misdemeanor in state court can be an “aggravated felony” under immigration law. A suspended sentence you never serve can count against you. And even charges that get dismissed might still show up on your immigration record.

If your dealing with criminal charges and your not a U.S. citizen, you need to understand the real risks. Not the watered-down version your criminal lawyer gives you when they say “don’t worry about immigration stuff.” The actual, specific, this-is-what-happens-next risks.

Because here’s the truth: deportation doesn’t require a serious crime. It don’t even require jail time. The right charge with the wrong sentence length—even if that sentence is suspended—can be enough.

Understanding Your Immigration Status and Risk Level

Before we get into which crimes cause deportation, you need to understand that your immigration status determines alot about you’re risk level. Not all non-citizens face the same consequences for the same crimes.

Green Card Holders (Lawful Permanent Residents)

If you have a green card, your risk depends partly on how long you’ve had it. This is something most people don’t know: crimes committed within the first five years after becoming a permanent resident have different threshholds then crimes committed after.

For the first 5 years, a single crime involving “moral turpitude” (we’ll explain what that means) can make you deportable if the possible sentence was one year or more—even if you didn’t actually serve that time. After five years? You need either two seperate convictions for moral turpitude crimes, or one conviction with an actual sentence of a year or more.

That single day—day 1,826 of having your green card—can literally change the legal analysis of you’re case. I’ve seen cases where an attorney delayed a criminal proceeding by a few months specifically to get the client past that five-year mark.

Visa Holders

If your in the U.S. on a visa—student visa, work visa, tourist visa—you’re in a more precarious position then green card holders. Any criminal charge (not even conviction, just charges) can lead to your visa being revoked.

The goverment can terminate your visa based on an arrest alone, particularly if they beleive you violated the terms of you’re visa or pose a “threat.” Even if you’re criminal case gets dismissed, the visa revocation can stand.

And here’s what really gets people: if you leave the U.S. while charges are pending or after a conviction, you might not be able to come back. The consulate can deny your visa application based on the criminal record, and you won’t have the same due process rights you would have in immigration court here.

Undocumented Individuals

If you don’t have legal status, any encounter with law enforcement can lead to deportation proceedings. But—and this matters—the specific crime your charged with determines whether you might be eligible for any relief from deportation.

Some undocumented immigrants qualify for “cancellation of removal” if they’ve been in the U.S. for 10 years, have good moral character, and can show that there removal would cause “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent, or child. But certain criminal convictions make you automatically ineligible for this relief.

DACA Recipients

If you have DACA (Deferred Action for Childhood Arrivals), your status can be revoked if your convicted of a felony, a significant misdemeanor, or three or more misdemeanors. Once DACA is revoked, you loose work authorization and protection from deportation.

What’s a “significant misdemeanor” under DACA? Domestic violence, sexual abuse, burglary, unlawful possession of a firearm, drug distribution or trafficking, or DUI. Also any misdemeanor for which you was sentenced to more then 90 days (the time you actually served doesn’t matter—its the sentence imposed).

The Two Categories That Determine Everything

Okay so here’s where it gets confusing, and this is the part that catches like 80% of people completely off gaurd. Theres two main categories of crimes that trigger deportation under immigration law: aggravated felonies and crimes involving moral turpitude.

And I cannot stress this enough—these categories don’t mean what you think they mean.

Aggravated Felonies: The Most Misleading Name in Immigration Law

When you hear “aggravated felony,” you probly think of serious, violent crimes. Murder. Armed robbery. Things that would obviously be felonies and obviously be aggravated right?

Wrong.

Under immigration law an “aggravated felony” can be a misdemeanor. It can be a crime you got probation for. It can be somethin that, in criminal court was treated as no big deal at all.

Here’s a real example: shoplifting merchandise worth $700. In many states, thats a misdemeanor. You might get a fine, maybe some community service. But under immigration law, if the potential sentence was one year or more (even if you got probation), that shoplifting charge is an aggravated felony for immigration purposes.

And here’s why that matters so much: aggravated felonies are basically a deportation death sentance. If you’re convicted of an aggravated felony there’s almost no relief available. You can’t get cancellation of removal, you can’t get most waivers. You will be deported, and you’ll be permanantly barred from returning to the United States.

The list of crimes that count as aggravated felonies is long, but here are some that suprise people:

• Theft or burglary with a sentence of one year or more (even suspended)
• Fraud or deceit where the victim’s loss was more than $10,000
• Drug trafficking (which can include selling small amounts to friends)
• Certain firearms offenses
• Domestic violence with a sentence of one year or more
• Sexual abuse of a minor
• Document fraud (like using a fake ID or someone else’s social security number)
• Failure to appear in court if the underlying charge was a felony

Notice what’s missing from that list? The word “violent.” Most aggravated felonies aren’t violent crimes at all and this is why so many people get blindsided—they think “well it was just a theft” or “I just used a fake ID to get a job,” not realizing that these things have been classified as aggravated felonies under immigration law.

Crimes Involving Moral Turpitude (CIMT): What Does That Even Mean?

If “aggravated felony” is confusing, “moral turpitude” is worse because theres no clear definition.

The courts have said a crime involves moral turpitude if it involves conduct that is inherently base vile or depraved and contrary to accepted rules of morality. Yeah that really clears it up, doesnt it?

In practice, moral turpitude generally means one of two things: fraud (intent to decieve) or intent to harm a person or property.

Crimes that typically count as moral turpitude include:

• Assault with intent to injure (but simple assault might not be)
• Theft (taking someone else’s property with intent to steal)
• Fraud (credit card fraud, identity theft, forgery)
• Domestic violence
• Many sex offenses
• Voluntary manslaughter
• Witness tampering or perjury
• Animal fighting

Crimes that generally DON’T involve moral turpitude:

• Simple assault (without intent to seriously injure)
• Breaking and entering without intent to commit a theft or other crime
• Disorderly conduct
• Immigration violations
• DUI (usually—but this is heavily debated and depends on the specific facts)

But heres the thing, whether a specific crime involves moral turpitude can depend on how the statute is written, what the charging documents say and exactly what you pleaded guilty to. The same crime name can be moral turpitude in one state but not another, based off how the state defined the offense.

The Petty Offense Exception

There is one exception that can save you if you’ve been convicted of a moral turpitude crime: the “petty offense exception.”

If you only have ONE moral turpitude conviction ever, and the maximum possible sentence was one year or less, and you were actually sentenced to six months or less, then the conviction won’t make you inadmissible or deportable.

This is why sentence negotiation is so critical which brings us to the next section.

The Sentence Threshold Secret Your Criminal Attorney Needs to Know

Alright this part is gonna sound weirdly specific but stay with me because this could literaly be the difference between staying in the U.S. and being deported.

There is a massive legal difference between a sentence of 364 days and a sentence of 365 days (1 year).

Remember how we said many crimes only become aggravated felonies or deportable moral turpitude crimes if the sentence is one year or more? That threshhold is exactly one year. Not “about a year.” Not “around a year.” Exactly 365 days.

364 days? Your probly okay (depending on other factors).

365 days? Deportable.

I’ve seen smart criminal defense attorneys specifically negotiate for a 364-day sentence instead of one year for exactly this reason and its saved peoples’ ability to stay in the country. But I’ve also seen attorneys who don’t know immigration law agree to a “one year” sentence thinking “well he’s only gonna serve 30 days anyway so whats the difference?”

The difference is everything.

Imposed Sentence vs. Time Actually Served

And here’s another thing that trips people up: for immigration purposes, what matters is the sentence the judge imposed, not what you actually served.

Lets say you plead guilty and the judge sentences you to two years in prison, but then suspends all but 30 days. You serve one month and get released on probation.

How does immigration law look at that? They see a two-year sentence. The fact that most of it was suspended doesn’t matter—you “got” two years, which puts you over the one-year threshhold for many deportable offenses.

This is why you cant just focus on “how much time will I serve?” You need to focus on “what sentence will be imposed on paper?” because thats what immigration judges will look at years from now when your trying to renew your green card or apply for citizenship.

How to Talk to Your Criminal Attorney About This

If your criminal defense attorney doesn’t practice immigration law, they might not know any of this and thats not necessarily there fault—criminal law and immigration law are totally seperate fields.

But since the Supreme Court case Padilla v. Kentucky (2010), criminal defense attorneys are legally required to advise you about immigration consequences of a guilty plea. If they don’t, that could be grounds for “ineffective assistance of counsel” later.

Here’s what you need to ask your criminal attorney:

• “Is this crime classified as an aggravated felony under immigration law?”
• “Does this crime involve moral turpitude?”
• “What sentence will be imposed, not just what will I serve?”
• “Can we negotiate for 364 days instead of one year?”
• “Should I consult with an immigration attorney before accepting this plea?”

If your attorney says “don’t worry about immigration” or “we’ll deal with that later” or “it probably won’t matter”—those are red flags. Get a second opinion from an immigration attorney before you accept any plea deal.

And document everything document when you asked about immigration consequences, what your attorney said, whether they told you to talk to an immigration lawyer. If you do end up in deportation proceedings, this documentation could be critical.

Crimes That Always Trigger Deportation (No Exceptions)

Some crimes are so serious under immigration law that theres basically no way to avoid deportation if your convicted and there’s no waiver available, no relief no cancellation of removal. If you’re convicted of one of these crimes and your not a U.S. citizen your going to be deported. Period.

Murder

Any murder conviction—first degree, second degree, voluntary manslaughter in some cases—is an aggravated felony with no waiver available.

Drug Trafficking

This is broader then you think. Obviously selling large quantities of drugs is trafficking, but immigration law can classify much smaller-scale activity as “trafficking” to.

Selling a small amount of marijuana to a friend can be considered drug trafficking under immigration law. Even a state misdemeanor conviction for “possession with intent to distribute” can trigger this.

And unlike some other crimes there’s no amount threshhold—any drug trafficking conviction, regardless of the quantity, is deportable with no waiver.

Crimes Involving Torture

Any conviction involving torture makes you deportable with no relief available. This also includes being complicit in torture, even if you weren’t the one who directly committed the act.

Sexual Abuse of a Minor

Any conviction for sexual abuse of a minor is an aggravated felony under immigration law. This includes statutory rape convictions, even if the state treats it as a misdemeanor.

Theres no waiver available for this, and you’ll be permanantly barred from returning to the United States.

Domestic Violence, Child Abuse, and Violations of Protective Orders

This category is broader then most people realize, and it catches alot of people off guard.

Under immigration law, a “domestic violence” conviction doesn’t have to be labeled as such under state law. What matters is the relationship between you and the victim.

Any crime of violence (assault, battery, etc.) committed against:

• A current or former spouse
• Someone you lived with as a spouse
• Someone you have a child with
• Any child of any of the above people (even if its not your child)

That counts as domestic violence for immigration purposes even if the state charged it as simple assault or disorderly conduct.

Similarly, violating a protective order can be a deportable offense, even if the violation itself was non-violent (like sending a text message or showing up at someone’s workplace).

Child abuse and child neglect convictions are also automatically deportable, with very limited waiver options.

Firearms Offenses

Federal law prohibits non-citizens from possessing firearms in most circumstances. A conviction for illegal firearm possession or use is typically an aggravated felony.

This includes:

• Unlawful possession
• Possession of a stolen firearm
• Firearms trafficking
• Using a firearm during a crime

Even if the state treats it as a misdemeanor, federal immigration law likely classifies it as an aggravated felony.

What “No Waiver Available” Actually Means

When we say there’s no waiver for these crimes we mean that even if you have U.S. citizen children who depend on you, even if you’ve been in the U.S. for 30 years even if deportation would cause extreme hardship to your family—it doesn’t matter.

The immigration judge doesn’t have discretion to let you stay, no matter how sympathetic your case is. Congress has said these crimes result in mandatory deportation.

This is why its absolutely critical to understand the immigration consequences before you plead guilty to anything. Once you’ve been convicted of one of these offenses you’re options are extremely limited.

When Charges Alone Can Hurt You (Before Conviction)

Most people think they don’t have to worry about immigration consequences untill there actually convicted of something but that’s not true—the mere fact that your arrested and charged can trigger immigration problems.

How ICE Gets Notified

When your booked into many jails, the jail checks your immigration status as part of the booking process. If your not a U.S. citizen, they may notify ICE (Immigration and Customs Enforcement) automatically.

This happens even for minor arrests—traffic violations, misdemeanors, things that might not lead to any jail time at all.

Once ICE is notified, they can place an immigration detainer on you. This means that even if you post bail on your criminal charges, the jail won’t release you—they’ll hold you for ICE to pick you up and transfer you to immigration detention.

The ICE Detainer Problem

Immigration detainers have become more common in recent years, especially in jurisdictions that cooperate closely with federal immigration enforcement.

Here’s how it works: you get arrested on a Friday night for DUI. On Monday, you go before a judge who sets a $500 bail. You’re family posts the bail but when they show up to pick you up, the jail says “sorry, ICE has a detainer on him.”

Now your in immigration custody, even though you haven’t been convicted of anything. You might spend weeks or months in immigration detention before you even have your first criminal court date.

Can You Avoid Triggering an ICE Detainer?

In some cases, yes. The key is to post bail as quickly as possible, before the jail processes your paperwork and runs the immigration check.

If you have family members who can post bail immediately—like within hours of your arrest—sometimes you can be released before ICE is notified. But this varies widely by jurisdiction, and in places with strong ICE cooperation, they may check immigration status during the initial booking before bail is even set.

Visa Revocations from Pending Charges

If your in the U.S. on a visa, pending criminal charges can lead to your visa being revoked even without a conviction.

Visa holders are required to maintain good moral character and comply with all laws. An arrest can be seen as evidence that your violating the terms of you’re visa, particularly if:

• The charges suggest you’ve been working without authorization
• The charges involve drugs or violence
• Your visa is expiring soon and you need to renew it

If your visa gets revoked while charges are pending, you could be placed in removal proceedings before you’ve even had your criminal trial.

Inadmissibility Issues for Re-Entry

Even if pending charges don’t lead to deportation, they can make you inadmissible if you leave the U.S. and try to return.

Lets say your a green card holder who travels abroad while criminal charges are pending. When you try to return, Customs and Border Protection sees the pending charges. They might decide that you’re inadmissible based on “reason to believe” you’ve been involved in drug trafficking or other serious crimes.

Now your stuck outside the U.S., unable to return home, while you’re criminal case is still ongoing. And you can’t appear in criminal court to defend yourself because your not allowed back in the country.

This is why immigration attorneys almost always advise: do not travel outside the U.S. if you have pending criminal charges, even if your a green card holder who normally has the right to travel freely.

The Padilla Warning: Your Criminal Attorney’s Legal Duty

In 2010 the Supreme Court decided a case called Padilla v. Kentucky that changed everything about how criminal defense attorneys have to handle cases involving non-citizen defendants.

Before Padilla, alot of criminal attorneys would tell there clients “I’m not an immigration lawyer” and leave it at that. They’d focus solely on getting the best outcome in criminal court, without thinking about what that outcome meant for immigration status.

The Supreme Court said that’s not good enough. Criminal defense attorneys now have a constitutional duty to advise defendants about the immigration consequences of a guilty plea.

What Your Attorney Is Required to Tell You

If deportation is a clear consequence of a guilty plea (like if your pleading to an aggravated felony), your attorney must clearly tell you: “If you plead guilty to this charge, you will be deported.”

If the immigration consequences are less clear, your attorney must tell you: “This plea may carry a risk of deportation. You should consult with an immigration attorney.”

Your attorney can’t just hand you a form that mentions immigration consequences in fine print. They need to actually advise you—explain the risks, answer you’re questions, and give you a chance to make an informed decision.

What to Do If Your Attorney Doesn’t Give You a Padilla Warning

If you’re attorney doesn’t mention immigration consequences at all or brushes off you’re concerns, document it.

Send your attorney an email saying: “You mentioned in our meeting today that I shouldn’t worry about immigration consequences of this plea. Can you please confirm in writing that this conviction won’t affect my green card status?”

If they can’t confirm that in writing, thats a problem. And if they do confirm it in writing but they’re wrong, you have documentation that they gave you bad advice.

Using Padilla to Withdraw a Guilty Plea

If you’ve already pleaded guilty and you didn’t get proper advice about immigration consequences, you might be able to withdraw you’re plea based on ineffective assistance of counsel.

To succeed with this claim, you generally need to show:

• Your attorney’s performance was deficient (they didn’t advise you about immigration consequences)
• You were prejudiced by this (you wouldn’t have pleaded guilty if you’d known about the immigration consequences)
• Its reasonable to believe the court would have allowed you to go to trial instead

This is time-sensitive—in most states, you need to file a motion to withdraw your plea within 30 to 90 days of the conviction. After that, you’re options become much more limited.

Documenting Immigration Advice (or Lack Thereof)

If your currently facing charges, protect yourself by documenting everything related to immigration advice:

• Take notes during every meeting with your attorney
• Follow up conversations with emails summarizing what was said
• Ask your attorney to put advice in writing
• If your attorney says they’re not qualified to advise on immigration, get that in writing to
• Keep copies of everything your attorney gives you

If you end up in removal proceedings, this documentation could be the difference between staying and being deported.

Post-Conviction Options: What If You Already Pleaded Guilty?

Maybe your reading this and thinking “I wish I’d known all this before I took that plea deal.” If you’ve already been convicted and you’re now facing immigration consequences, you’re not completely out of options—but you need to act fast.

Vacating the Conviction

In some cases, you can get a conviction vacated (erased) if there was a legal problem with the original case. The most common ground is ineffective assistance of counsel—if your attorney didn’t warn you about immigration consequences, as required by Padilla.

If the conviction is vacated, it’s like it never happened for immigration purposes. You can then either go to trial, negotiate a new plea to a different charge, or potentially get the case dismissed.

But there’s a catch: immigration law only recognizes convictions that are vacated for legal defects in the original case. If you get a conviction vacated purely for immigration purposes—like if a state offers a special program to help non-citizens—federal immigration law might not recognize that vacatur.

The key question is: was there a real legal problem with the conviction (like ineffective counsel, constitutional violation, procedural error), or was it vacated just to help with immigration?

Modifying Sentences

Sometimes you can go back to court and get your sentence modified to bring it under the deportation threshhold.

Remember that 364-day vs. 365-day distinction? If you were sentenced to exactly one year, you might be able to get the court to reduce it to 364 days.

Or if you got a two-year suspended sentence, maybe the court will modify it to 364 days.

Whether this is possible depends on state law—some states allow sentence modifications, others don’t. And you typically have to file a motion within a specific time period after sentencing.

Again, the key is whether the modification is being done for a legitimate legal reason, or purely for immigration purposes.

State-Specific Post-Conviction Relief

Different states have different mechanisms for post-conviction relief:

• Expungement: Some states allow convictions to be expunged from your record. However, for immigration purposes, an expunged conviction usually still counts—you were still “convicted” even if the record is sealed.
• Deferred Adjudication: In some states, if you complete probation successfully, the court can dismiss the charges without a formal conviction. Whether this counts as a “conviction” for immigration purposes depends on the specific state procedure.
• Certificates of Rehabilitation: Some states offer certificates showing you’ve been rehabilitated. These can help with some immigration applications, but they don’t erase the conviction.

The Divisibility Doctrine: A Technical But Important Defense

Here’s a technical concept that sometimes creates an opening: when a criminal statute covers both deportable and non-deportable conduct, immigration judges use the “divisibility doctrine” to figure out which version you were convicted of.

For example, lets say a state statute defines “assault” as either (1) intentionally causing injury, or (2) recklessly causing injury. The intentional version might involve moral turpitude, but the reckless version might not.

If you pleaded guilty to “assault” without specifying which version, and the record doesn’t make it clear, you might be able to argue that the government can’t prove you were convicted of the deportable version.

This requires looking at the “record of conviction”—the charging documents, plea agreement, and any statements made during the plea colloquy. If those documents are vague, that vagueness can sometimes work in you’re favor in immigration court.

Timing Windows: Act Fast

Most post-conviction relief options are time-sensitive:

• Direct appeals: Usually 30 days from conviction
• Motions to withdraw plea: Often 30-90 days, depending on the state
• Ineffective assistance claims: Sometimes within one year, varies by state
• Sentence modifications: Varies widely by state

Once these windows close, your options are extremely limited. This is why its critical to consult with both a criminal attorney and an immigration attorney as soon as you realize theres a problem.

Waivers and Relief from Removal: Can You Stay Despite a Deportable Conviction?

Even if you’ve been convicted of a deportable offense, there are some forms of relief that might allow you to stay in the United States. But—and this is important—these forms of relief are difficult to get, and you need to meet very specific criteria.

Cancellation of Removal for Lawful Permanent Residents

If your a green card holder in removal proceedings, you might qualify for “cancellation of removal” if you meet all these requirements:

• You’ve been a lawful permanent resident for at least 5 years
• You’ve resided continuously in the U.S. for at least 7 years after being admitted in any status
• You haven’t been convicted of an aggravated felony

That third requirement is a killer—if you’ve been convicted of an aggravated felony (remember, that can be a misdemeanor theft), you’re not eligible for cancellation of removal.

If you do qualify, the immigration judge has discretion to cancel your removal if you can show that you deserve it based on factors like:

• Family ties in the U.S.
• Length of residence
• Evidence of good moral character
• Employment history
• Community ties
• Hardship to you and your family if removed

Cancellation of Removal for Non-Permanent Residents

If you’re not a green card holder but you’ve been in the U.S. for a long time, you might qualify for the non-LPR version of cancellation of removal. The requirements are tougher:

• You’ve been physically present in the U.S. for at least 10 continuous years
• You’ve been a person of good moral character during those 10 years
• You haven’t been convicted of certain disqualifying offenses
• Your removal would result in “exceptional and extremely unusual hardship” to your U.S. citizen or LPR spouse, parent, or child

That “exceptional and extremely unusual hardship” standard is very high—higher then the normal “extreme hardship” standard. Your basically having to show that the hardship to your qualifying relatives would be far beyond what would normally be expected from deportation.

Form I-601 Waivers of Inadmissibility

If your applying for a green card or other immigration benefit and a criminal conviction makes you inadmissible, you might be able to apply for a waiver using Form I-601.

Who qualifies depends on the specific crime. Some crimes (like aggravated felonies) don’t have waivers available. For others (like single crimes involving moral turpitude), you might be able to get a waiver if you can show that refusing the waiver would cause extreme hardship to your U.S. citizen or LPR spouse or parent.

Notice who’s NOT on that list: children. For I-601 waivers, hardship to U.S. citizen children isn’t enough by itself—you need a qualifying spouse or parent.

Section 212(h) Waivers

Section 212(h) of the Immigration and Nationality Act provides waivers for certain crimes involving moral turpitude and some other offenses.

You might qualify if:

• You have a U.S. citizen or LPR spouse, parent, son, or daughter who would suffer extreme hardship if your application is denied
• The crime occured more than 15 years ago and you’ve been rehabilitated
• You can show that granting the waiver would be in the public interest

But your NOT eligible for a 212(h) waiver if you’ve been convicted of an aggravated felony and your a permanent resident.

What “Extreme Hardship” Actually Means

The term “extreme hardship” comes up in almost all waiver applications. Its not enough to show that you’re family would miss you or that it would be difficult for them if you were deported—that’s normal hardship that any family would face.

Extreme hardship means hardship that goes beyond what would normally be expected. Things that can show extreme hardship include:

• Medical conditions of qualifying relatives that require your care or that would be difficult to treat in your home country
• Financial hardship (but your family needs to show why they can’t work or support themselves without you)
• Country conditions in your home country (violence, lack of medical care, persecution)
• Psychological harm to U.S. citizen children (backed up by expert evaluations)
• Educational disruption for children
• Qualifying relatives’ inability to relocate to your home country (due to medical needs, work, etc.)

Evidence That Actually Works

If your applying for any form of relief, you need strong evidence. General statements aren’t enough—you need documentation:

• Medical records and doctor’s letters explaining conditions and treatment needs
• Psychological evaluations of family members
• Country condition reports from credible sources (State Department, human rights organizations)
• Financial documents showing income, expenses, and dependence
• Letters from schools, employers, community members
• Evidence of your contributions to the community (volunteer work, church involvement, etc.)

Immigration judges see waiver applications every day. The ones that succeed are the ones with strong, specific, documented evidence of hardship.

Realistic Probability Assessment

Look, I’m gonna be real with you here. Waivers are hard to get and if you have an aggravated felony conviction, your chances are basically zero for most types of relief.

Even for crimes that have waivers available, the approval rate varies significantly depending on the specific facts of your case, the judge your in front of, and the strength of your evidence.

An immigration attorney can give you a realistic assessment of whether relief is worth pursuing in you’re case. Sometimes the answer is yes, its worth fighting. Sometimes the answer is no, you should focus on preparing for life after deportation.

Its better to know the truth now then to spend years and thousands of dollars pursuing relief that was never gonna be granted.

2025 Enforcement Priorities: What’s Changed

Immigration enforcement priorities have shifted significantly in 2025, and if your facing criminal charges as a non-citizen, you need to understand the current environment.

Expanded Expedited Removal

One of the biggest changes is the expansion of expedited removal. This process allows immigration officers to deport certain people without a hearing before an immigration judge.

Previously, expedited removal only applied to people who were caught within 100 miles of the border and within 14 days of entry. Now it applies anywhere in the United States to anyone who cannot prove they’ve been in the country continuously for at least two years.

What this means practically: if you’re arrested by ICE and you don’t have documents proving you’ve been in the U.S. for at least two years, they can deport you immediately without a court hearing.

Criminal Convictions as Automatic Priority

Under current enforcement priorities, anyone with a criminal conviction is considered a priority for deportation—regardless of how minor the crime was or how long ago it occured.

In previous years, there was more prosecutorial discretion. ICE officers might choose not to pursue deportation for someone with an old misdemeanor conviction who had family ties and community roots.

That discretion has been significantly reduced. If you have a criminal conviction on your record, even an old one, ICE is more likely to initiate removal proceedings against you if they encounter you.

Increased Cooperation Between State and Federal Authorities

The level of cooperation between local law enforcement and ICE varies significantly by state and even by county.

Some jurisdictions have “sanctuary” policies that limit cooperation with ICE. These places generally won’t honor ICE detainers or notify ICE about inmates’ release dates.

Other jurisdictions cooperate closely with ICE, sharing booking information and honoring detainers.

Where you are matters alot. If your arrested in a jurisdiction with strong ICE cooperation, you’re much more likely to end up in immigration detention then if your arrested in a sanctuary jurisdiction.

Prosecutorial Discretion Changes

ICE attorneys used to have significant discretion to dismiss or administratively close deportation cases for people who didn’t pose a threat and had strong equities (long U.S. residence, family ties, etc.).

That discretion still exists technically, but its being exercised much less frequently. ICE attorneys are under pressure to pursue cases to completion rather then closing them.

What to Expect in Different States

Your experience with immigration enforcement can vary dramatically depending on where you live:

States with Sanctuary Policies (California, Illinois, parts of New York, etc.): Local police generally don’t ask about immigration status. Jails don’t honor ICE detainers. Your less likely to end up in ICE custody from a criminal arrest.

States with Strong ICE Cooperation (Texas, Arizona, Florida, Georgia, etc.): Local police may ask about immigration status. Jails cooperate with ICE detainers. Criminal arrests frequently lead to immigration detention.

States in Between: Policies vary by county. Some counties cooperate with ICE, others don’t. You need to know the specific policies where you live.

Immediate Action Steps: What to Do Right Now

Depending on where you are in the criminal justice process, here’s what you need to do immediately:

Scenario 1: You’ve Just Been Arrested (Haven’t Been Charged Yet)

1. Don’t talk to police about anything without a lawyer present. Anything you say can be used against you in criminal court AND immigration court.
2. Post bail as quickly as possible to try to get released before ICE is notified. Have family ready to post bail immediately if possible.
3. Hire an immigration attorney in addition to your criminal defense attorney. They need to coordinate strategy.
4. Don’t travel outside the U.S. for any reason until both cases are resolved.
5. Gather documents proving your length of time in the U.S., family relationships, and community ties.

Scenario 2: You’ve Been Charged But Haven’t Entered a Plea

1. Consult with an immigration attorney before accepting any plea deal. Have them review the specific charges and potential sentences.
2. Ask your criminal attorney the five questions listed in the earlier section about immigration consequences.
3. Consider trial if the immigration consequences of a plea are too severe. Yes, you might get a worse sentence if convicted at trial, but if the plea guarantees deportation anyway, you might as well fight.
4. Negotiate sentence length specifically—aim for 364 days max, not one year, if the crime category requires it.
5. Get everything in writing—document all advice your criminal attorney gives you about immigration consequences.

Scenario 3: You Have a Plea Offer on the Table

1. Do NOT accept it yet. Tell your attorney you need time to consult with an immigration lawyer.
2. Have an immigration attorney review the plea and provide a written assessment of the immigration consequences.
3. Ask the prosecutor (through your attorney) if they’ll agree to a different charge that doesn’t trigger deportation.
4. Request time to consider the offer. Don’t let anyone pressure you into accepting immediately.
5. Consider alternatives like pretrial diversion programs, deferred adjudication, or other options that might avoid a conviction entirely.

Scenario 4: You’ve Already Been Convicted—Within the Appeal Window

1. Act immediately—you typically have 30 days or less to file a notice of appeal or motion to withdraw your plea.
2. Hire an attorney who handles both criminal appeals and immigration cases, or hire separate attorneys who will coordinate.
3. File a motion to withdraw your plea if you didn’t get proper Padilla warnings about immigration consequences.
4. Consider sentence modification if the sentence length is the problem (like getting 365 days reduced to 364).
5. Don’t wait—these deadlines are strict and you’ll lose your options if you miss them.

Scenario 5: You’ve Already Been Convicted—Appeal Window Has Closed

1. Consult an immigration attorney about whether any post-conviction relief is available in your state.
2. Determine eligibility for waivers or other relief from removal.
3. Start gathering evidence now for any future waiver application (medical records, financial documents, etc.).
4. Don’t travel outside the U.S. If you leave, you might not be allowed back in.
5. Prepare for the possibility of removal proceedings while exploring all options to stay.

Scenario 6: You’re Already in Immigration Proceedings

1. Hire an immigration attorney immediately if you don’t have one. This is not something you can handle alone.
2. Attend all hearings—if you miss one, you’ll likely be ordered deported in absentia.
3. Apply for all relief you might qualify for (cancellation of removal, waivers, etc.).
4. Gather evidence of family hardship, community ties, rehabilitation, and any other factors in your favor.
5. Explore post-conviction options in your criminal case if the conviction is what’s triggering deportation.

Building Your Defense Team: Who You Need and Why

One of the biggest mistakes people make is thinking they can handle this with just one attorney. When criminal charges and immigration status intersect, you need expertise in both areas—and thats almost never the same person.

Why You Need Both a Criminal Attorney AND an Immigration Attorney

Criminal law and immigration law are completely different fields. A great criminal defense attorney might know nothing about immigration law, and visa versa.

Your criminal attorney’s job is to get you the best outcome in criminal court—minimize charges, reduce sentences, get cases dismissed if possible. But they’re thinking about criminal consequences: jail time, probation, fines.

Your immigration attorney is thinking about a different set of questions: Does this charge trigger deportation? Is there a different charge we could plead to that doesn’t? Does the sentence length matter? Can we get a waiver if your convicted?

These attorneys need to work together. The criminal attorney negotiates the plea, but the immigration attorney advises on which pleas are acceptable from an immigration standpoint.

What Your Criminal Attorney Should Know About Immigration

Your criminal defense attorney doesn’t need to be an immigration expert, but they do need to:

• Know that immigration consequences exist and matter
• Be willing to consult with an immigration attorney about your case
• Understand that sentence length and specific charge language matter for immigration
• Be willing to negotiate pleas that might not be the “best” criminal outcome but avoid deportation
• Document the advice they give you about immigration consequences

If your criminal attorney is dismissive about immigration concerns or refuses to consult with an immigration attorney, that’s a problem. Find a different criminal attorney.

What Your Immigration Attorney Should Know About Your Criminal Case

Your immigration attorney needs to:

• Review the specific criminal statute your charged under
• Analyze whether the crime is an aggravated felony or involves moral turpitude
• Understand the sentence threshholds that trigger deportation
• Know which pleas are safe and which ones aren’t
• Advise on the divisibility doctrine and record of conviction issues
• Assess eligibility for relief if you are convicted

How the Two Attorneys Should Coordinate

Ideally, your criminal and immigration attorneys will:

• Talk to each other before you accept any plea deal
• Review plea offers together to assess both criminal and immigration consequences
• Coordinate on what information needs to be in (or out of) the record of conviction
• Work together on sentencing recommendations
• Plan post-conviction strategy if needed

You’ll need to sign releases allowing them to talk to each other and share information about your case.

Cost Considerations and Priorities

Look I know hiring two attorneys is expensive. But here’s the reality: if you get deported, you loose everything. Your job. Your home. Your family.

The money you spend on good legal representation now could literally be the difference between staying with your family and being permanently separated from them.

That said if money is tight, prioritize:

• Get at least one consultation with an immigration attorney to assess the risks—many offer free or low-cost initial consultations
• If you have to choose, hire the criminal attorney first (since the criminal case is active) but make sure they consult with an immigration attorney before any plea
• Look for attorneys who offer payment plans
• Explore free or low-cost options (see below)

Free and Low-Cost Resources

If you can’t afford to hire private attorneys, there are options:

• Public Defenders: You have a right to a public defender in your criminal case if you can’t afford an attorney. Make sure they consult with someone about immigration consequences.
• Immigration Legal Services Organizations: Many non-profit organizations provide free or low-cost immigration legal help. Look for organizations recognized by the Department of Justice’s List of Pro Bono Legal Service Providers.
• Law School Clinics: Many law schools run immigration clinics where law students (supervised by experienced attorneys) provide free legal services.
• Bar Association Referrals: Many state and local bar associations have referral services and can connect you with attorneys who offer reduced fees.

Questions to Ask Before Hiring

When you’re interviewing attorneys, ask:

• “How many cases like mine have you handled?”
• “What’s your experience with [specific crime] and immigration consequences?”
• “Will you consult with an immigration attorney about my case?” (for criminal attorneys)
• “Will you review the criminal charging documents and plea?” (for immigration attorneys)
• “What’s your fee structure and do you offer payment plans?”
• “What are the realistic possible outcomes in my case?”
• “What’s your assessment of my chances for relief from deportation?”

Don’t hire anyone who guarantees a specific outcome or who pressures you to hire them immediately. Good attorneys will give you realistic assessments and time to make a decision.

Taking Control of Your Future

If your still reading this, you’ve made it through alot of information—and I know its overwhelming. The intersection of criminal law and immigration law is incredibly complex, and the stakes couldn’t be higher.

But here’s what I want you to take away from all of this:

Knowledge is power. Now that you understand which crimes trigger deportation, what sentence threshholds matter, and what relief might be available, you’re in a much better position to make informed decisions about your case.

Timing matters. Almost every option we’ve discussed—from withdrawing guilty pleas to applying for waivers to negotiating sentence lengths—is time-sensitive. The earlier you act, the more options you have.

You’re not alone. Thousands of people are facing the same situation your facing. There are attorneys who specialize in exactly this issue, organizations that provide resources, and legal protections (like the Padilla warning requirement) that exist specifically to help people like you.

Even a deportable conviction doesn’t always mean deportation. Yes, some crimes lead to mandatory deportation with no relief available. But for many crimes, there are waivers, forms of relief, and post-conviction options that might allow you to stay. You won’t know unless you explore them with a qualified immigration attorney.

The plea you accept today will affect your immigration status for the rest of your life. Don’t let anyone pressure you into accepting a plea deal without fully understanding the immigration consequences. You have the right to take time to consult with an immigration attorney. Use that right.

If your currently facing charges, your next step is clear: consult with an immigration attorney before you make any decisions in your criminal case. Not after. Before.

If you’ve already been convicted, your next step is to find out whether any post-conviction relief or immigration relief is available in your situation. You need to act quickly—those windows close fast.

And if your already in removal proceedings, you need an experienced immigration attorney on your side who can identify every possible form of relief and present the strongest case for why you should be allowed to stay.

This is your life, your family, your future. Don’t leave it to chance. Don’t assume “it’ll probably be fine.” Get the information you need, hire the right attorneys, and fight for your right to stay with the people you love.