If you are not a citizen, a criminal case is also an immigration case

Someone is charged with a minor offence. The prosecutor offers a deal: plead, pay a fine, no jail, and it is finished by lunchtime. In criminal terms it is a good result and everyone in the room knows it.

If the person is not a United States citizen, that same plea can be the end of their residence in the country. The criminal case is over; the immigration consequence lasts. This article is general information, not advice about your case.

Two systems, one plea

Illinois decides what an offence is and what happens to the person charged. Federal immigration law then reads that outcome and decides what it means for status. The two do not use the same categories, and the second one is not bound by the first.

The result is that the seriousness of an offence in Illinois terms is a poor guide to its seriousness in immigration terms. Offences that sound minor can carry heavy immigration consequences. Offences that sound serious sometimes carry none. The only way to know is to look at the specific provision being pleaded to, and at exactly what the plea admits.

"It was not a conviction" is often wrong

This is the trap that catches the most people. Illinois has dispositions that are not convictions under state law — court supervision being the familiar one. A person completes it, the case is closed without a judgment of conviction, and they reasonably believe nothing happened.

Immigration law has its own definition of conviction, and it is broader. It can include a case where a court withheld judgment, if there was an admission or a finding of guilt and some penalty or restraint was imposed. Which means the answer to "do you have a conviction" can be no in the criminal courthouse and yes at the immigration window, on the same facts.

The same problem appears with sealing and expungement. Clearing a record under state law does not necessarily erase it for immigration purposes, and the question on an immigration form usually asks about arrests and charges, not only about convictions that still show.

What the plea says matters as much as what it is

Two people can plead to the same section of the same statute and end up in different immigration positions, because immigration law sometimes looks at the record of the case: which subsection, what quantity, whose age, what the factual basis said. A sentence of a particular length can turn one category of offence into another.

This is why the useful work happens before the plea, not after. A charge can sometimes be amended to a different offence with the same practical outcome for the client and a different immigration meaning. A sentence can sometimes be structured differently. None of that is available once the plea is entered.

Your lawyer has to be told, and has to tell you

In Padilla v. Kentucky, decided in 2010, the Supreme Court held that a defense lawyer must advise a non-citizen client about the immigration consequences of a plea. It is not an optional courtesy and it is not the immigration lawyer's job alone.

But a lawyer can only advise on facts they have. Say it at the first meeting, plainly: I am not a citizen. Say it even if you are a permanent resident, even if you have been here since childhood, even if you have a pending application. Permanent residents are removable; a green card is not a citizenship. People who arrived as small children are removable to countries they do not remember.

Withdrawing a plea afterwards is hard

There are ways to attack a conviction later — where the advice given was wrong or absent, where the plea was not properly taken. They are real and they are worth pursuing when they apply. They are also slower, less certain and more expensive than getting the plea right in the first place, and they often have to be done while removal proceedings are already running.

Practical rules while a case is open

• Tell your criminal lawyer your status at the first meeting, before any offer is discussed.
• Do not accept a same-day plea because it is convenient. A continuance costs a morning; the wrong plea costs more.
• Ask for the specific offence and subsection in writing before agreeing to anything.
• Do not travel abroad while a charge is open, and take advice before traveling after one has closed.
• Keep the certified disposition of every case, including cases that were dismissed. You will be asked for it years later, and courthouses lose things.
• Do not file an immigration application on the assumption that a closed case is invisible. Applications are where old cases surface.

Why one office

The reason criminal defense and immigration sit together in this practice is this article. When the two sides are handled by people who do not speak to each other, the damage happens in the gap between them — not through anyone's carelessness, but because the criminal lawyer is optimizing for a criminal outcome and nobody in the room is reading the plea the way an immigration officer will read it three years later.

The next step

Bring the charging document, the court date, your immigration documents and the papers from any earlier case, however old and however it ended. If an offer has already been made, bring it in writing. The first question is always the same: what exactly does this plea admit?