Can a Criminal Conviction Get You Deported? Immigration Consequences of a California Criminal Case
The short answer: yes. A conviction in a California criminal court, including a misdemeanor plea that carries no jail time, can make a lawful permanent resident deportable, make a visa holder or undocumented person ineligible for a green card or relief from removal, and bar naturalization. Federal law, not California law, decides which convictions count, and it looks at the statute of conviction and the sentence imposed rather than at what actually happened. Because of that, a plea that looks like a good deal to a citizen can be the worst possible outcome for a non-citizen, and California law now requires defense lawyers to investigate and advise on these consequences before any plea under Penal Code section 1016.3. This guide explains the main categories of removable offenses, the tools California gives defense counsel to avoid them, and how an old plea can sometimes be vacated, drawing on the firm's criminal defense practice in Riverside, San Bernardino, Los Angeles, and the High Desert.
Why Federal Law Controls the Outcome
Immigration law has its own definition of a conviction. Under 8 U.S.C. section 1101(a)(48), a conviction exists for immigration purposes whenever a court enters a formal judgment of guilt, or the person pleads guilty or no contest or admits sufficient facts and the judge orders some form of punishment or restraint. That definition captures a no contest plea, a plea followed by probation with no jail, and in many situations a deferred judgment where the plea was entered and later withdrawn. Our guide on no contest pleas explains why the difference between guilty and no contest helps in civil court but not with immigration.
The categorical approach looks at the statute. Immigration judges generally ask whether the minimum conduct the California statute punishes fits the federal removal ground, not whether the person's actual conduct did. The United States Supreme Court applied that approach in Moncrieffe v. Holder (2013) 569 U.S. 184, holding that a state marijuana conviction that could cover social sharing of a small amount was not an aggravated felony, and in Mellouli v. Lynch (2015) 575 U.S. 798, holding that a paraphernalia conviction was not a removable drug offense where the state statute covered substances not on the federal schedules. This is why the choice of statute at the plea matters more than the facts in the police report.
The sentence imposed matters too. Several removal grounds turn on whether a sentence of one year or more was imposed, including any suspended time. Penal Code section 18.5 now caps every California misdemeanor at 364 days for exactly this reason, so a misdemeanor conviction alone cannot trigger the one-year sentence grounds. A felony with a stayed or suspended one-year term still can, which is one reason a motion to reduce a wobbler to a misdemeanor under Penal Code section 17, subdivision (b), can be an immigration strategy; see our guide on reducing a felony to a misdemeanor.
The Main Grounds of Deportability
Crimes involving moral turpitude. Under 8 U.S.C. section 1227(a)(2)(A), a lawful permanent resident is deportable for one crime involving moral turpitude committed within five years of admission if the offense carries a possible sentence of one year or more, and for two crimes involving moral turpitude at any time that did not arise from a single scheme. Theft, fraud, forgery, and many assault offenses with an intent to injure are treated as crimes involving moral turpitude, while simple battery, trespass, and disturbing the peace generally are not. Our guides on grand theft, forgery, and identity theft cover offenses that routinely raise this issue.
Aggravated felonies. The list in 8 U.S.C. section 1101(a)(43) includes drug trafficking, a crime of violence or a theft or burglary offense with a sentence of one year or more, fraud or deceit with a loss to the victim over $10,000, and many sex offenses, regardless of whether California calls the crime a felony. An aggravated felony conviction makes a permanent resident deportable, bars nearly every form of relief, and carries a permanent bar on returning. The Supreme Court struck down part of the crime of violence definition as unconstitutionally vague in Sessions v. Dimaya (2018) 584 U.S. 148, but the core definition still reaches offenses such as robbery and assault with a deadly weapon.
Controlled substance offenses. A conviction under any law relating to a federally controlled substance makes a non-citizen deportable under 8 U.S.C. section 1227(a)(2)(B), with a narrow exception for a single conviction for possession of 30 grams or less of marijuana for personal use. Simple possession under Health and Safety Code section 11350 or Health and Safety Code section 11377 qualifies, which is why pretrial diversion under Penal Code section 1000, which requires no guilty plea, is so important for non-citizens; our PC 1000 diversion guide and our drug possession guide explain the mechanics. Sales and possession for sale are treated as drug trafficking aggravated felonies.
Firearms offenses. A conviction for buying, selling, possessing, or carrying a firearm in violation of any law is a separate deportability ground under 8 U.S.C. section 1227(a)(2)(C). Carrying a concealed firearm under Penal Code section 25400 or a loaded firearm under Penal Code section 25850 can trigger it even as a misdemeanor; see our guides on concealed firearm charges and carrying a loaded firearm.
Domestic violence, stalking, child abuse, and protective orders. Under 8 U.S.C. section 1227(a)(2)(E), a conviction for a crime of domestic violence, stalking, or child abuse, and a court finding that the person violated a protective order, are deportability grounds. A plea to corporal injury under Penal Code section 273.5 is generally treated as a crime of domestic violence, while the treatment of domestic battery under Penal Code section 243, subdivision (e)(1), has been litigated because the statute reaches offensive touching with no injury. Our guides on domestic battery, corporal injury, and violating a restraining order address the criminal side, and the criminal protective order under Penal Code section 136.2 is the order whose violation triggers this ground.
Inadmissibility: A Different Test for Green Cards and Re-Entry
Admissibility is judged separately. A person applying for a green card, returning from a trip abroad as a permanent resident in some circumstances, or seeking certain relief must be admissible under 8 U.S.C. section 1182(a)(2). That section makes a person inadmissible for a conviction or an admission of a crime involving moral turpitude or any controlled substance offense, with no five-year window and no requirement of a sentence. A single marijuana possession conviction may be waivable, but most other drug convictions are not.
The petty offense exception. A single crime involving moral turpitude does not make a person inadmissible when the maximum possible penalty is one year or less and the sentence actually imposed was six months or less. Because Penal Code section 18.5 caps misdemeanors below one year, a single California misdemeanor with a sentence of six months or less can fit the exception, which is one reason negotiating a misdemeanor rather than a felony, and a short sentence rather than a long suspended one, can preserve a path to a green card.
DACA, TPS, and naturalization. DACA renewal, temporary protected status, asylum, cancellation of removal, and naturalization each have their own criminal bars, and naturalization requires good moral character for the statutory period, which a theft, DUI, or domestic violence conviction can undermine. A non-citizen should assume that any plea will be reviewed in every future immigration application and should ask counsel to analyze each program that applies.
What California Law Requires Defense Lawyers to Do
Padilla and Penal Code 1016.3. In Padilla v. Kentucky (2010) 559 U.S. 356, the United States Supreme Court held that the Sixth Amendment requires defense counsel to advise a non-citizen client about the deportation consequences of a plea. California codified and expanded that duty in Penal Code section 1016.2 and Penal Code section 1016.3, which require defense counsel to accurately advise the client and to defend against adverse immigration consequences by seeking a disposition that avoids them, and which direct prosecutors to consider immigration consequences in plea negotiations.
The court's advisement. Before accepting a plea, every California court must advise the defendant under Penal Code section 1016.5 that the conviction may result in deportation, exclusion from admission, or denial of naturalization. The advisement appears on the plea form and is read aloud at the Riverside Hall of Justice, the San Bernardino Justice Center, the Victorville courthouse, and every other courtroom in the state. A missing advisement is itself a ground to vacate the plea under the same section.
Immigration-conscious plea negotiation. In practice, the defense lawyer identifies the client's immigration status and goals, obtains an analysis of which statutes and sentences would be safe, and negotiates toward them. Common tools include a plea to a non-moral-turpitude offense such as Penal Code section 415 or Penal Code section 602 where the facts allow, a plea to accessory after the fact under Penal Code section 32 in some cases, a sentence of 364 days or less, a record that does not identify a specific controlled substance, and diversion programs that avoid a plea entirely. Our guides on misdemeanor diversion, mental health diversion, and military diversion describe the programs that end in dismissal without a conviction. Whether a particular alternative is safe depends on the client's status and the current case law, and the analysis should be done before, not after, the plea.
Vacating an Old Plea Because of Immigration Consequences
Penal Code 1473.7. A person who is no longer in criminal custody can move to vacate a conviction under Penal Code section 1473.7 when the conviction is legally invalid because of a prejudicial error that damaged the person's ability to understand, defend against, or knowingly accept the immigration consequences of the plea. The motion does not require proof that the lawyer was constitutionally ineffective, only that an error occurred and that the person would not have accepted the plea had they understood the consequences. The California Supreme Court explained the independent review standard and the prejudice analysis in People v. Vivar (2021) 11 Cal.5th 510, and the United States Supreme Court held in Lee v. United States (2017) 582 U.S. 357 that a defendant can show prejudice from bad immigration advice even when the evidence of guilt was strong.
Other vacatur tools. A plea taken without the advisement required by Penal Code section 1016.5 can be vacated under that section. A drug plea entered under the old deferred entry of judgment program can be vacated under Penal Code section 1203.43, which the Legislature enacted because the old program's plea was treated as a conviction by immigration authorities. A plea can also be withdrawn before sentencing under Penal Code section 1018 for good cause, as explained in our guide to withdrawing a guilty plea.
Expungement is not enough. A dismissal under Penal Code section 1203.4 is a rehabilitative relief that generally does not eliminate the conviction for immigration purposes, because the federal definition of conviction looks to the original plea and sentence. Our guide on expunging a criminal record explains what the petition does and does not do. Vacatur under Penal Code section 1473.7 or Penal Code section 1016.5, which is based on a legal defect in the original proceeding, is the relief that immigration courts recognize.
Practical Steps for Non-Citizens Facing Charges in Southern California
Tell your lawyer your status immediately. The analysis differs for a lawful permanent resident, a visa holder, a DACA recipient, an asylum applicant, and an undocumented person with a citizen spouse, and the safe plea for one can be dangerous for another. Clients in Riverside, Fontana, Ontario, Pomona, Santa Ana, and Oxnard sometimes hesitate to disclose their status to their own lawyer; the attorney-client privilege protects that conversation, and without it the lawyer cannot do what Penal Code section 1016.3 requires.
Do not make statements. An admission to police can be used in immigration court even without a conviction, because inadmissibility can rest on an admission of the essential elements of an offense. Our guides on what not to say to police and on what to do when a detective calls apply with special force to non-citizens.
Think about custody and bail early. A person booked at the West Valley Detention Center in Rancho Cucamonga, the High Desert Detention Center in Adelanto, or the Robert Presley Detention Center in Riverside may be the subject of an immigration detainer, and the Adelanto ICE Processing Center is the regional immigration detention facility for much of Southern California. California law limits local cooperation with immigration enforcement, but a quick release on bail or own recognizance under Penal Code section 1270 and the standards in In re Humphrey (2021) 11 Cal.5th 135 remains the best protection; see our guides on how bail works in San Bernardino County and what to do after an arrest in the Inland Empire.
Get a written immigration analysis before the plea. For a client with anything at stake, the defense lawyer should consult an immigration attorney or an expert resource and obtain a written analysis of the proposed plea. Prosecutors in Riverside and San Bernardino County are directed by Penal Code section 1016.3 to consider immigration consequences, and a specific, documented request for an alternative plea is more likely to succeed than a general plea for leniency. Read our guides on whether to take a plea deal and what prosecutors look at before filing charges.
Frequently Asked Questions
Can a misdemeanor get a green card holder deported?
Yes. A misdemeanor conviction for a controlled substance offense, a firearms offense, a crime of domestic violence, or a crime involving moral turpitude committed within five years of admission can make a permanent resident deportable under 8 U.S.C. section 1227(a)(2), even with no jail time. The 364-day cap in Penal Code section 18.5 prevents a misdemeanor from being an aggravated felony on the sentence grounds, but it does not remove the other categories.
Is a DUI a deportable offense in California?
Usually not by itself. A simple first DUI under Vehicle Code section 23152 is generally not treated as a crime involving moral turpitude or an aggravated felony, so a single conviction typically does not trigger deportability. A DUI with a child in the car, a DUI while driving on a license suspended for DUI, or repeated DUIs can affect good moral character for naturalization and can be considered in discretionary decisions, and a felony DUI with injury raises harder questions.
Does a no contest plea avoid immigration consequences?
No. Federal law treats a no contest plea with any punishment as a conviction under 8 U.S.C. section 1101(a)(48). The plea avoids an admission usable in a civil lawsuit, but immigration authorities treat it the same as a guilty plea.
Will expunging my conviction fix my immigration problem?
Generally not. A dismissal under Penal Code section 1203.4 is rehabilitative relief that immigration authorities usually disregard. A vacatur under Penal Code section 1473.7 or Penal Code section 1016.5, based on a legal defect in the original plea, is the relief that can eliminate the conviction.
Can I vacate a plea from ten years ago?
Possibly. Penal Code section 1473.7 applies to people who are no longer in custody and requires the motion to be filed with reasonable diligence after the person receives a notice to appear in immigration court or a removal order, so old pleas from the Riverside Hall of Justice or the Clara Shortridge Foltz Criminal Justice Center can be challenged. The court file, the plea form, and the original lawyer's records are the evidence, and the standard was explained in People v. Vivar (2021) 11 Cal.5th 510.
Does diversion count as a conviction for immigration?
Usually not, if no plea was entered. Pretrial diversion under Penal Code section 1000, judicial diversion under Penal Code section 1001.95, and mental health diversion under Penal Code section 1001.36 are structured so that no guilty plea is entered, which keeps them outside the federal definition of a conviction. Programs that require a plea first, and admissions made as a condition of the program, can still create problems, so the structure of any diversion should be reviewed before accepting it.
Talk to a Criminal Defense Attorney Who Plans for Immigration Consequences
Gramling Law Group defends non-citizen clients at the Riverside Hall of Justice, the Southwest Justice Center, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Victorville courthouse, the Clara Shortridge Foltz Criminal Justice Center, the Central Justice Center in Santa Ana, and the Ventura County Hall of Justice, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California, and coordinates with immigration counsel on every plea. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so clients in Riverside, San Bernardino, Hesperia, and Los Angeles know the cost before the first court date. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
We defend non-citizen clients in Riverside, San Bernardino, Hesperia, and Los Angeles, and across the Inland Empire.
Gramling Law Group
3600 Lime St, Bldg 2, Riverside, CA 92501
Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
Follow Daniel Gramling on Instagram: @californiafamilylawyer
Comments