The Plea That Deports You: Why a Louisiana Criminal Case Is an Immigration Case Too

A man walks into our office holding a piece of paper from eight years ago. It is a minute entry from a Louisiana district court. He pled guilty to a theft charge, got probation, completed it, and had the case set aside. His lawyer told him it would not be on his record. He believed that, because it was true in the only sense his lawyer meant it.

Now he is in removal proceedings, and the government is using that same case against him.

This happens constantly, and it happens to people who did everything they were told to do. The disconnect is structural. A state criminal lawyer may be measuring a plea offer by jail time, fines, and probation length. Immigration law measures the same plea under a separate set of federal rules, and the immigration consequences do not necessarily disappear simply because state law later sets aside or dismisses the case.

Federal law defines “conviction” its own way

Under the Immigration and Nationality Act, a conviction exists when there is a formal judgment of guilt, or when adjudication of guilt has been withheld but the person entered a guilty or no contest plea, admitted sufficient facts to support a finding of guilt, or was found guilty, and the court imposed some form of punishment, penalty, or restraint. See INA § 101(a)(48)(A).

That distinction matters. A Louisiana deferred sentence under Code of Criminal Procedure article 893, or a misdemeanor deferral under article 894, can still satisfy the federal immigration definition of a conviction when the requirements of INA § 101(a)(48)(A) are met.

Louisiana law may allow a qualifying conviction to be set aside and the prosecution dismissed after successful completion of probation. Under Articles 893 and 894, that dismissal may have the same effect as an acquittal for certain state-law purposes, subject to statutory exceptions. Immigration law is different. State rehabilitative relief, including many dismissals or expungements, generally does not eliminate a conviction that already satisfies the federal immigration definition.

The same issue exists with sentence length. For immigration purposes, the Act provides that a term of imprisonment includes the period ordered by the court regardless of whether the imposition or execution of that imprisonment is suspended. See INA § 101(a)(48)(B).

That means a suspended sentence can still matter even when the client never serves that time in jail. For certain aggravated-felony categories, including some theft offenses and crimes of violence, a term of imprisonment of at least one year can be critical to the immigration analysis. An aggravated-felony conviction can carry extremely serious immigration consequences, including deportability and significant restrictions on available forms of relief.

Which is why, in the right case, the difference between 365 days and 364 days can have enormous immigration consequences.

The categories that matter

Controlled substances. A conviction relating to a controlled substance as defined under federal law can make an admitted noncitizen deportable. There is a narrow exception to this deportability ground for a single offense involving possession for one’s own use of thirty grams or less of marijuana. That exception is specific and should not be treated as a general exception throughout immigration law.

Drug paraphernalia offenses can also create immigration problems, but the analysis is not automatic. The conviction must have the legally required connection to a substance controlled under federal law.

Domestic violence, stalking, child abuse, child neglect, and protective-order violations. Immigration law contains separate deportability provisions involving certain crimes of domestic violence, stalking, child abuse, child neglect, and child abandonment. Certain violations of protection orders can also create a separate ground of deportability. Whether a particular Louisiana conviction falls within one of these provisions requires analysis of the statute, record, and immigration law.

Crimes involving moral turpitude. Certain theft, fraud, and other offenses may qualify as crimes involving moral turpitude, depending on the elements of the particular offense. Whether that creates deportability can also depend on factors such as the timing of the offense after admission, the possible sentence, and whether there are multiple qualifying convictions. That is why the immigration analysis should happen before the plea whenever possible.

Firearms offenses. Immigration law also contains a separate deportability ground for certain firearms convictions. Unlike the controlled-substance provision discussed above, there is no comparable small-offense exception written into the firearms deportability provision.

And separate from deportability, there can be other immigration consequences. Criminal conduct or convictions may affect eligibility for naturalization, cancellation of removal, bond, waivers, adjustment of status, or other immigration benefits depending on the particular offense, immigration status, timing, sentence, and surrounding facts.

A result that looks favorable in criminal court can still create serious immigration consequences for a noncitizen.

What competent defense looks like

The Supreme Court held in Padilla v. Kentucky, 559 U.S. 356 (2010), that the Sixth Amendment requires criminal defense counsel to advise a noncitizen client regarding the risk of deportation arising from a guilty plea. When the immigration consequence is clear, counsel must provide correct advice. When the law is unclear or uncertain, counsel must advise the client that the plea may carry a risk of adverse immigration consequences.

Real work starts by identifying the client’s exact immigration status and history, because the analysis for a lawful permanent resident may be different from the analysis for someone with a pending asylum case or someone without lawful status.

From there, the criminal and immigration consequences of a proposed plea should be analyzed together. In some cases, an alternative charge, plea, or sentence may produce similar results in criminal court while creating very different immigration consequences.

That analysis is most useful before the plea is entered. Once a plea becomes final, available options may be substantially more limited and can require postconviction litigation.

Our firm does both sides of this

Most defendants who need this analysis are choosing between a criminal defense lawyer who does not practice immigration and an immigration lawyer who is not handling the criminal case. We handle both criminal defense and immigration matters, allowing the immigration consequences to be considered as part of the criminal-defense strategy.

When a noncitizen client is facing criminal charges in Louisiana, the immigration analysis should happen before the plea negotiation is finished, not after an unexpected immigration consequence appears.

If you or someone in your family is not a United States citizen and is facing charges anywhere in Louisiana, call us at 225-341-6945 before the next court date.