Crimes and Deportation: Which Convictions Make You Deportable

Why a conviction matters in immigration law

Immigration law uses criminal history in two different lists. The grounds of deportability in INA § 237, 8 U.S.C. § 1227 apply to people who were admitted — for example lawful permanent residents and visa holders. The grounds of inadmissibility in INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) apply to people seeking admission or a green card, including people who entered without inspection. The same offense can fall under one list and not the other, which is why the first question is always the person’s status.

A conviction can have four separate consequences, and each is decided under its own rule:

• Removability — the government charges it in a Notice to Appear and must prove it in removal proceedings.
• Detention — some offenses trigger mandatory detention without a bond hearing.
• Bars to relief — an aggravated felony, for example, bars cancellation of removal for permanent residents and asylum.
• Discretion — even when relief is available, the immigration judge weighs the criminal record against the favorable factors.

For a plain-language introduction to the deportability list itself, see our article Grounds of Deportability: Why a Person Already Here Can Be Removed.

What counts as a “conviction” for immigration purposes

Immigration law has its own definition, in INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A). A conviction is a formal judgment of guilt entered by a court. And if adjudication of guilt has been withheld, it is still a conviction when both of these are true:

1. a judge or jury found the person guilty, or the person pleaded guilty or nolo contendere (no contest), or admitted facts sufficient to warrant a finding of guilt; and
2. the judge ordered some form of punishment, penalty or restraint on the person’s liberty.

That is why a “withheld adjudication,” a deferred judgment or a diversion program that required a guilty plea and probation, a fine or classes can count as a conviction for immigration purposes even if state law treats the case as dismissed. Each program has to be read on its own terms.

Sentences. Under INA § 101(a)(48)(B), a “term of imprisonment” or “sentence” includes the period of incarceration a court orders, regardless of any suspension of that sentence in whole or in part. A one-year sentence fully suspended is still a one-year sentence for the aggravated-felony categories that turn on a term of at least one year.

Vacated convictions and changed sentences. The Board of Immigration Appeals held in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) that a conviction vacated for reasons solely related to rehabilitation or immigration hardships, rather than a procedural or substantive defect in the criminal case, is not eliminated for immigration purposes. The Attorney General applied the same principle to sentences in Matter of Thomas & Thompson, 27 I&N Dec. 674 (A.G. 2019): a state-court order that modifies, clarifies or otherwise changes a sentence is given effect only if it is based on a procedural or substantive defect in the underlying criminal proceeding — not if it is based on rehabilitation or on avoiding immigration consequences.

Aggravated felonies

“Aggravated felony” is an immigration term defined in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43). An offense does not have to be a felony, or aggravated, under state law to qualify. A noncitizen convicted of an aggravated felony at any time after admission is deportable under INA § 237(a)(2)(A)(iii). The list has more than twenty categories; among the ones seen most often:

• murder, rape or sexual abuse of a minor (§ 101(a)(43)(A));
• illicit trafficking in a controlled substance, including a federal drug trafficking crime (§ 101(a)(43)(B));
• a crime of violence as defined in 18 U.S.C. § 16 “for which the term of imprisonment [is] at least one year” (§ 101(a)(43)(F));
• a theft offense (including receipt of stolen property) or burglary offense with a term of imprisonment of at least one year (§ 101(a)(43)(G));
• an offense involving fraud or deceit in which the loss to the victim or victims exceeds $10,000 (§ 101(a)(43)(M)(i));
• money laundering over $10,000, certain firearms trafficking and explosives offenses, and an attempt or conspiracy to commit any listed offense (§ 101(a)(43)(D), (C), (E), (U)).

The definition applies to federal and state offenses, and to foreign offenses for which the term of imprisonment was completed within the previous 15 years. It applies regardless of whether the conviction was entered before, on or after September 30, 1996.

Two points often surprise people. First, for categories (F) and (G) the question is the sentence imposed, including any suspended part — so a misdemeanor theft with a 365-day suspended sentence can be an aggravated felony. Second, the Supreme Court held in Sessions v. Dimaya, No. 15-1498 (U.S. Apr. 17, 2018) that the “residual clause” of 18 U.S.C. § 16(b), as incorporated into the immigration definition, is unconstitutionally vague; a “crime of violence” is now judged under § 16(a), the elements clause.

The consequences are the harshest in immigration law: an aggravated felony bars cancellation of removal for permanent residents (INA § 240A(a)(3)) and is treated as a particularly serious crime that bars asylum (INA § 208(b)(2)(B)(i), 8 U.S.C. § 1158(b)(2)(B)(i)). Our article Aggravated Felony: The Immigration Term That Isn’t What It Sounds Like walks through more examples.

Crimes involving moral turpitude

“Crime involving moral turpitude” (CIMT) is not defined in the statute; its meaning comes from decades of agency and court decisions. Whether an offense qualifies depends on the elements of the specific statute of conviction. The BIA held in Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) that the categorical and modified categorical approaches (explained below) are the framework for deciding whether a conviction is a CIMT.

Deportability (INA § 237(a)(2)(A)(i)–(ii)). A noncitizen is deportable for:

• one CIMT committed within five years after the date of admission (ten years for certain permanent residents under § 1255(j)), if the crime is one for which a sentence of one year or longer may be imposed — the possible maximum, not the sentence actually given; or
• two or more CIMTs at any time after admission, not arising out of a single scheme of criminal misconduct, whether or not the person was jailed.

Inadmissibility (INA § 212(a)(2)(A)(i)(I)). A person convicted of a CIMT — or who admits committing its essential elements — is inadmissible. The “petty offense” exception in § 212(a)(2)(A)(ii) applies to a person who committed only one such crime if the maximum possible penalty did not exceed one year and the sentence imposed was not more than six months; there is also a narrow exception for a single offense committed under age 18 more than five years before the application. See our article Crimes Involving Moral Turpitude: A Concept That Shapes Cases.

Drug, firearm and domestic-violence offenses

Controlled substances

Under INA § 237(a)(2)(B)(i), a noncitizen convicted after admission of violating any law relating to a controlled substance (as defined in 21 U.S.C. § 802), or of a conspiracy or attempt, is deportable — with one exception: a single offense of possession for one’s own use of 30 grams or less of marijuana. A person who is or has been a drug abuser or addict after admission is also deportable (§ 237(a)(2)(B)(ii)). For inadmissibility, a controlled-substance violation — including an admission of its elements — makes a person inadmissible under § 212(a)(2)(A)(i)(II), and a person the government “knows or has reason to believe” is a trafficker is inadmissible under § 212(a)(2)(C) even without a conviction.

The Supreme Court held in Mellouli v. Lynch, 575 U.S. 798 (2015) that a state paraphernalia conviction did not trigger removal because the record did not tie it to a drug on the federal controlled-substance schedules. In Moncrieffe v. Holder, 569 U.S. 184 (2013) it held that a state marijuana distribution conviction that does not establish remuneration or more than a small amount of marijuana is not an aggravated felony.

Firearms

A conviction after admission under any law for purchasing, selling, using, owning, possessing or carrying a firearm or destructive device in violation of law — or attempting or conspiring to — is a ground of deportability under INA § 237(a)(2)(C). Firearms trafficking and several federal firearms offenses are also aggravated felonies.

Domestic violence, stalking, child abuse and protection orders

Under INA § 237(a)(2)(E), a noncitizen convicted after admission of a crime of domestic violence, stalking, or child abuse, neglect or abandonment is deportable. A “crime of domestic violence” is a crime of violence under 18 U.S.C. § 16 committed against a person in one of the relationships the statute lists (a current or former spouse, a person who shares a child, a cohabitant and others protected under domestic-violence laws). Separately, a person whom a court finds has violated the part of a protection order that protects against credible threats of violence, repeated harassment or bodily injury is deportable — this ground requires a court finding, not a criminal conviction.

Inadmissible or deportable: why status changes the analysis

The two lists overlap but are not the same:

• Admission versus conviction. Inadmissibility can rest on an admission of the elements of a CIMT or drug offense, without a conviction. Deportability under § 237(a)(2) generally requires a conviction.
• Multiple convictions. Under § 212(a)(2)(B), a person convicted of two or more offenses of any kind with aggregate sentences to confinement of five years or more is inadmissible, whether or not the offenses involved moral turpitude.
• Timing. The single-CIMT deportability ground only reaches crimes committed within five years after admission; the inadmissibility ground has no such window.
• Waivers. A discretionary waiver under INA § 212(h) can forgive some inadmissibility grounds — our inadmissibility guide covers who qualifies. For deportability, § 237(a)(2)(A)(vi) provides that the CIMT, aggravated-felony and high-speed-flight grounds do not apply after a full and unconditional pardon by the President or a state Governor.

This is why a person applying for a green card, a person who entered without inspection and a permanent resident with the same record can face very different consequences.

The categorical approach: comparing the statute, not the facts

To decide whether a state conviction fits a federal category, immigration judges and courts generally use the categorical approach. As the Supreme Court explained in Moncrieffe, the person’s actual conduct is irrelevant: the court compares the elements of the state statute of conviction with the “generic” federal definition, and the conviction qualifies only if the least culpable conduct the statute covers fits the federal category. In Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017), the Court held that for statutory-rape offenses based solely on the participants’ ages, the generic federal definition of “sexual abuse of a minor” requires the victim to be under 16.

When a statute lists alternative elements, the modified categorical approach allows a look at a limited set of record documents (such as the charging document and plea) to see which alternative was the basis of the conviction. Some categories are different: in Nijhawan v. Holder, 557 U.S. 29 (2009), the Court held that the $10,000 loss in the fraud category is judged by the specific circumstances of the offense, not by the statute’s elements.

These rules are technical, and the outcome can turn on the precise subsection pleaded to and on the law of the federal circuit where the case arises. That is also why the wording of a plea agreement and the record of conviction matter so much.

Before and after a plea: Padilla and post-conviction relief

In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment requires criminal defense counsel to inform a noncitizen client whether a plea carries a risk of deportation. When the law is not succinct and straightforward, counsel need only advise that the charges may carry a risk of adverse immigration consequences; when the deportation consequence is truly clear, counsel must say so. Whether a person who was not advised gets relief also depends on showing prejudice.

For someone with a pending criminal case, the practical point is to have the immigration consequences analyzed before the plea — the charge, the subsection, the sentence (including any suspended part) and the words of the plea can make the difference between a deportable offense and one that is not.

For someone already convicted, a vacatur or sentence change counts in immigration court only if it rests on a legal defect in the criminal case, under Pickering and Thomas & Thompson (see above). A vacatur based on a Padilla violation or another constitutional or procedural defect is the kind of order that can be recognized; one granted only to avoid deportation is not. If a conviction is vacated after a removal order, a motion to reopen may be the way to bring the change before the immigration court.

Detention and relief in immigration court after a conviction

Mandatory detention. INA § 236(c), 8 U.S.C. § 1226(c) requires ICE to detain, when released from criminal custody, people inadmissible or deportable on listed criminal grounds. Since the Laken Riley Act of 2025, § 236(c)(1)(E) also reaches people inadmissible for entry without inspection, misrepresentation or lacking documents who are charged with, arrested for, convicted of, or admit committing burglary, theft, larceny, shoplifting, assault of a law-enforcement officer, or a crime resulting in death or serious bodily injury. Our guides on bond hearings and immigration detention explain when a judge can still set bond.

Relief that may remain. A conviction does not always end the case. Depending on the offense and the record, an immigration judge may still consider:

• Cancellation of removal for permanent residents (INA § 240A(a)), if the person has not been convicted of an aggravated felony and meets the five-year and seven-year requirements — see our cancellation guide for the stop-time rule.
• Adjustment of status with a waiver, where the offense is waivable — see adjustment of status.
• Asylum, withholding of removal and protection under the Convention Against Torture. An aggravated felony bars asylum. For withholding of removal, an aggravated felony (or felonies) with an aggregate sentence of at least five years is a particularly serious crime under INA § 241(b)(3)(B), and a shorter sentence can still be found particularly serious. See our asylum guide.

Because every one of these questions is decided by an immigration judge on the record, the immigration-court view matters from the first day: which charge the government can prove, what the conviction records actually show, and which relief survives. For the wider picture of defenses, see removal defense; if a judge has already ruled, see appeals to the BIA.

To have a former immigration judge handle the immigration side of a criminal case, alongside your criminal defense lawyer, see our criminal immigration lawyer page. Our self-check could a conviction affect my status? walks through the first questions to ask about an arrest, charge or conviction.

Carlos Maury, a former U.S. Immigration Judge, leads Carlos Maury Law; to talk about how a criminal charge or conviction affects your immigration case, call (213) 769-0050. We speak Spanish.