162 Immigration Attorneys Specializing in Criminal Immigration

Immigration adjudicators use the categorical approach (and modified categorical approach) to determine whether a state or federal conviction falls within an immigration offense category. This analysis compares the elements of the statute of conviction to the generic federal definition of the immigration offense. If the state statute is broader than the federal definition (i.e., it criminalizes conduct that falls outside the federal definition), the conviction may not be categorized as the immigration offense. This technical analysis requires careful reading of state criminal statutes and federal immigration precedent. Defense attorneys negotiating plea agreements should consider whether alternative charges or plea structures avoid immigration triggering offenses.

In some cases, it is possible to mitigate the immigration consequences of a criminal conviction through post conviction relief. Options may include vacating the conviction on a ground of legal invalidity (such as ineffective assistance of counsel that affected the plea), reducing the sentence to below an immigration triggering threshold, or expungement where recognized for immigration purposes. Federal courts have recognized a constitutional right to effective advice about immigration consequences before pleading guilty (Padilla v. Kentucky, 2010). If your criminal defense attorney failed to advise you about immigration consequences, a post conviction motion may be available. However, post conviction relief obtained solely for immigration purposes without a legal basis will not be recognized by USCIS or immigration courts.