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The Law Office of
Scott A. Mossman 1611 Telegraph Ave
Suite 1100
Oakland CA 94612

Tel: (510) 835-1115
Fax: (510) 835-1116

Consequences of Crime | Get Advice | After a Conviction

Immigration Consequences of a Criminal Conviction

If you are not a citizen of the United States, you should immediately seek advice from an immigration attorney upon being charged with a crime. An immigration attorney can (1) advise you of the actual immigration consequences of a conviction for the charged offense and (2) work with your public defender or criminal defense attorney in constructing an alternative plea that minimizes those consequences, if necessary.

The potential immigration consequences of a criminal conviction include the following. Deportation: You may be removed from the U.S., even if you have permanent residence (a green card), a student visa, a temporary worker visa, or asylum or refugee status. Inadmissibility: You may be ineligible to adjust status to permanent residence or to return to the U.S. if you depart for 15 years to life. Denial of naturalization: Even if you are safe from deportation, you may be denied naturalization to U.S. citizenship for 3 to 5 years or more.

Additionally, certain convictions will result in detention without the possibility of bond (bail) during the removal process, including the years that may be required for an appeal. This is called mandatory detention. A noncitizen is subject to mandatory detention if he or she is deportable for an aggravated felony conviction, a controlled substance conviction (other than simple possession for personal use of 30 grams or less of marijuana), most firearms convictions, two convictions for crimes of moral turpitude not arising out of a single scheme, a single conviction for a crime of moral turpitude committed within 5 years of admission where a sentence of 1 year or more is imposed, and certain other crimes. A noncitizen is also subject to mandatory detention if he or she is seeking admission to the U.S. (for example, when a permanent resident returns from a trip abroad) and is subject to any of the criminal grounds of inadmissibility. The grounds of inadmissibility cover a large number of crimes, including some that are relatively minor.

Unfortunately, there are many common myths about the immigration consequences of crime. A common myth among even experienced criminal defense attorneys is that a crime must be a felony under state law to count as an "aggravated felony" under federal immigration law. That is incorrect for the vast majority of crimes. Another assumption is that a defendant must be sentenced to a year or more for the crime to count as an aggravated felony. That is true for some categories of offenses, but is false for many others. Finally, many defendants believe they can wait until after they plead guilty to sort out the immigration consequences. This is a big mistake because it is almost always easier to negotiate a safer plea before conviction than to vacate a conviction and change the plea later.

Get Attorney Advice

I regularly advise noncitizens on the immigration consequences of a criminal conviction, particularly since I share an office suite with five criminal defense attorneys (we are not affiliated). Sometimes noncitizens come to me before deciding whether to plead guilty/no contest or to go to trial. Others come to me after conviction when they want to apply for an immigration benefit such as adjustment of status or naturalization.

To provide this advice, I first review your immigration documents, police reports, and charging papers. I then interview you thoroughly. I also talk to your public defender or criminal defense attorney. If the evaluation occurs before conviction, I discuss the strength of your criminal case and the feasibility of alternative pleas with him or her. Then, I prepare a written evaluation of your situation and advise your criminal attorney during the process of negotiating a better plea, if necessary.

To request an evaluation, email me at scott@smossmanlaw.com or leave a telephone message at (510) 835-1115. I try to respond to these types of emails and messages by the end of the business day. Please provide the following:

• Your name,
• Your phone number or email address (or the phone number of a responsible family member if you are in jail),
• The date of your next hearing in criminal court (if any),
• The criminal offenses the prosecutor has charged you with (or the offenses you have been convicted of),
• Your current immigration status.

I charge a flat fee for an evaluation of the immigration consequences of a criminal charge or conviction. My fee is $300 for the first charge or conviction, plus an additional $50 for each additional charge or prior conviction, pre-trial diversion, drug court, deferred-adjudication, etc. under California law. I charge a higher fee to evaluate charges or priors under federal law or the law of another state.

Post-Conviction Assistance

If you have already suffered a conviction, I can advise you on the immigration consequences of that conviction. I also file petitions under California Penal Code section 1203.4 and 1203.4a for persons convicted of a first offense of drug possession. This is effective to eliminate the immigration consequences of these convictions under the Ninth Circuit's decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Note, Lujan-Armendariz applies only to immigration applications or removal proceedings within the jurisdiction of the Ninth Circuit and may not provide protection in other parts of the United States or elsewhere.

I normally do not represent persons seeking other more complex forms of post-conviction relief. I refer those cases to a criminal defense attorney with post-conviction experience.

Scott Mossman is a licensed attorney and active member of the State Bar of California.