Analyzing the Immigration Consequences of a Criminal Case: A Practical Checklist

Immigration > Crimes and Immigration Consequences | Published 26 March 2025 - Updated 10 March 2026 | UpLaw - uplaw.us

How to Use This Checklist

Run phases 1 through 7 before any plea. Phase 8 applies if the plea has already happened. Phase 9 runs afterward, for the life of the client relationship.

The doctrine behind each item is in crimes and immigration consequences. The narrative orientation is the plea that ends the green card. The worksheets and motion outlines are in the immigration consequences and plea negotiation toolkit.

Phase 1 — Status

☐ Ask every client about citizenship, in every case. Do not infer from accent, name, or length of residence.

☐ Rule out existing citizenship first. Check acquisition at birth abroad under 8 U.S.C. § 1401 and 8 U.S.C. § 1409, derivation through a parent's naturalization under 8 U.S.C. § 1431, and naturalization of a child abroad under 8 U.S.C. § 1433. A citizen has no immigration exposure; see acquiring US citizenship through parents.

☐ Identify the current status precisely: lawful permanent resident, conditional resident, nonimmigrant visa holder, asylee, refugee, temporary protected status under 8 U.S.C. § 1254a, parolee, applicant with a pending case, or no status.

☐ Record the date and manner of admission, because the five-year moral turpitude window under 8 U.S.C. § 1227 runs from admission.

☐ Determine which list governs. Deportability under 8 U.S.C. § 1227 for someone already admitted; inadmissibility under 8 U.S.C. § 1182 for someone seeking admission or a benefit requiring admissibility.

☐ Ask about planned travel, because departure can convert a stable situation into an application for admission under the rules at 8 U.S.C. § 1225.

☐ Ask about pending or planned applications — adjustment under 8 U.S.C. § 1255, naturalization under 8 U.S.C. § 1427, status extension under 8 U.S.C. § 1184.

☐ Ask about prior removals, which raise reentry exposure under 8 U.S.C. § 1326.

☐ Identify the client's immigration objective, because it determines which consequences matter most.

Phase 2 — The Criminal History

☐ Collect every prior disposition, including juvenile matters, dismissed charges, and out-of-state and foreign cases.

☐ Record statutes, not charge names. "Assault" tells you nothing; the statute number and subsection tell you everything.

☐ Record the exact sentence on each count, including suspended time, credit for time served, and any probation revocation history.

☐ Record the statutory maximum for each offense, which controls the petty offense exception.

☐ Obtain certified records for anything that will matter, including the charging document and any plea colloquy transcript.

☐ Flag any disposition where adjudication was withheld, since it is likely still a conviction under the definition at 8 U.S.C. § 1101.

☐ Flag any prior expungement or set-aside and determine whether it rested on rehabilitation or on a legal defect.

☐ Note dates of commission, which matter for the five-year window and for the stop-time rule under 8 U.S.C. § 1229b.

Phase 3 — Run the Categorical Approach

☐ Pull the statute as it read on the date of the offense, not as amended.

☐ Extract the elements — what the prosecution must prove and a jury must find unanimously.

☐ Determine the full scope of conduct the statute reaches, including the least culpable conduct realistically prosecuted.

☐ Compare to the generic federal definition for each potentially applicable ground.

☐ If the statute is broader than the generic definition, stop: there is no categorical match, and the ground does not apply regardless of the facts. Moncrieffe v. Holder, 569 U.S. 184, is the model.

☐ Assess divisibility. Alternative elements create divisibility; alternative means do not. Mathis v. United States, 579 U.S. 500, supplies the test; Descamps v. United States, 570 U.S. 254, forecloses the modified approach for indivisible statutes. Check state jury instructions and case law.

☐ If divisible, identify which alternative the record establishes, using only the permissible documents: charging instrument, written plea agreement, plea colloquy, comparable judicial record of the factual basis, and jury instructions.

☐ Confirm the federal generic definition, which controls even where state law differs — see Esquivel-Quintana v. Sessions, 581 U.S. 385.

☐ For crime-of-violence analysis, apply only the elements clause of 18 U.S.C. § 16; the residual clause is invalid after Sessions v. Dimaya, 584 U.S. 148.

☐ Document the analysis in writing, because it is the basis for both the plea recommendation and any later challenge.

Phase 4 — Apply the Grounds

☐ Aggravated felony screen. Check every category in the definition at 8 U.S.C. § 1101, paying attention to the one-year sentence categories (theft, burglary, crime of violence, obstruction), the ten-thousand-dollar loss threshold for fraud, and the trafficking definition.

☐ Moral turpitude screen. For deportability: one conviction within five years of admission with a one-year maximum, or two convictions not from a single scheme. For inadmissibility: one conviction or admission, subject to the petty offense exception (one-year maximum, six-month sentence) and the youthful offender exception.

☐ Controlled substance screen. Any conviction relating to a federally controlled substance, except a single offense of simple possession of thirty grams or less of marijuana. Confirm the substance is on a federal schedule; federal simple possession is at 21 U.S.C. § 844. Note that a second simple possession conviction is not automatically an aggravated felony after Carachuri-Rosendo v. Holder, 560 U.S. 563.

☐ Firearms screen. Any conviction relating to purchasing, selling, possessing, or carrying a firearm is a deportability ground.

☐ Domestic violence screen. Convictions for domestic violence, stalking, child abuse, neglect, or abandonment, and judicial findings of protection order violations.

☐ Conduct-based screen. Admissions of essential elements; reason to believe trafficking; prostitution; false claim to citizenship; unlawful voting.

☐ Aggregate sentence screen. Two or more convictions with aggregate sentences of five years.

☐ Confirm none of the above is triggered by the proposed disposition before recommending it.

Phase 5 — Relief and Detention

☐ Check cancellation eligibility under 8 U.S.C. § 1229b: five years as a permanent resident, seven years of continuous residence, no aggravated felony. Apply the stop-time rule as construed in Barton v. Barr, 590 U.S. 222.

☐ Check waiver availability under 8 U.S.C. § 1182 and identify the qualifying relative.

☐ Check asylum and withholding exposure under 8 U.S.C. § 1158 and 8 U.S.C. § 1231, including the particularly serious crime analysis; see asylum and humanitarian relief.

☐ Check voluntary departure eligibility under 8 U.S.C. § 1229c.

☐ Check adjustment eligibility under 8 U.S.C. § 1255 and the regulations at 8 C.F.R. Part 245.

☐ Check mandatory detention exposure under 8 U.S.C. § 1226, with regulations at 8 C.F.R. Part 236. This determines whether a bond hearing will be available; see immigration detention, bond, and custody.

☐ Check expedited removal exposure under 8 U.S.C. § 1228 for non-permanent residents with aggravated felony convictions.

☐ Note judicial review limits under 8 U.S.C. § 1252, which preserve legal questions including the categorical analysis.

Phase 6 — Plea Targets and Record Discipline

☐ Set the sentence ceiling at 364 days for any offense that could fall in a one-year-sentence aggravated felony category.

☐ Check the statutory maximum for petty offense exception purposes; a one-year maximum with a six-month sentence preserves it.

☐ Consider probation revocation exposure, which can impose a suspended term later and create the threshold retroactively.

☐ Identify substitute offenses. Frequently safer: trespass; disorderly conduct; criminal mischief without an intent-to-defraud element; simple assault with no domestic relationship element; accessory after the fact in some jurisdictions. Frequently dangerous: any drug offense; any firearms offense; theft or burglary with a one-year sentence; fraud with loss over ten thousand dollars; anything with a domestic relationship element.

☐ Where a divisible statute is unavoidable, plead to the non-matching alternative and make sure the record says so.

☐ Keep disqualifying facts out of the plea colloquy. Do not stipulate to police reports as the factual basis; use a minimal factual basis tracking the safe alternative.

☐ Avoid restitution figures that establish a loss amount above the fraud threshold where a different figure is defensible.

☐ Confirm the immigration analysis of the substitute offense before proposing it; safe-sounding alternatives sometimes are not.

☐ Coordinate with immigration counsel before the plea, not after.

Phase 7 — Advisement

☐ Advise the client of the specific consequence, as Padilla v. Kentucky, 559 U.S. 356, requires — clear advice where the statute is clear, and at minimum a warning of possible adverse consequences where it is not.

☐ Explain the alternatives considered and why the recommended disposition was chosen.

☐ Confirm the client understands that a generic judicial advisement in the plea colloquy is not the same as counsel's advice.

☐ Document the advisement in writing, signed if possible.

☐ Advise on prejudice considerations where the client must choose between a plea with certain consequences and a trial with uncertain ones; Lee v. United States, 582 U.S. 357, recognizes that the choice can be rational either way.

☐ Advise about travel, applications, and future cases before the case closes.

Phase 8 — After the Plea

☐ Determine which ground the conviction triggers and whether removal proceedings have begun; if a notice to appear has issued, work through responding to a notice to appear.

☐ Check state post-conviction deadlines immediately. Several jurisdictions impose short windows running from sentencing.

☐ Evaluate vacatur for a legal defect — ineffective assistance under Padilla v. Kentucky, 559 U.S. 356; an unknowing or involuntary plea; a defective colloquy. This is the only reliably effective remedy.

☐ Build the prejudice showing with contemporaneous evidence: length of residence, family ties, the client's stated priorities at the time, and the availability of an alternative disposition.

☐ Evaluate sentence modification to 364 days where the term created the aggravated felony, and identify a legal basis for the modification.

☐ Evaluate executive clemency, remembering that a pardon does not reach the controlled substance ground.

☐ Do not rely on expungement, sealing, set-aside, or certificates of relief to cure the immigration consequence; they serve other purposes. See criminal record relief and petitioning to expunge or seal a criminal record.

☐ Preserve the categorical argument for immigration court even where post-conviction relief is unavailable; the conviction may simply not match.

☐ Sequence carefully. Do not file an immigration application requiring record review while the conviction is unresolved.

☐ Prepare for detention if mandatory detention applies, including a family plan, power of attorney, and childcare arrangements.

Phase 9 — Ongoing Advice

☐ Travel. No international travel without an inadmissibility analysis.

☐ Applications. No naturalization or adjustment filing without a completed criminal analysis; see naturalization and citizenship.

☐ Interviews. Answer truthfully; do not volunteer. Admissions of essential elements can create inadmissibility without any conviction.

☐ Marijuana. Explain that state legalization does not change federal immigration law, that employment in a licensed cannabis business creates exposure, and that admitting use at an interview has produced denials. See the cannabis compliance and record relief toolkit.

☐ Future cases. Explain that a second moral turpitude conviction at any time creates deportability, so the next case carries far more weight than the last one did.

☐ Documents. Keep the permanent resident card current, keep certified dispositions, and keep the written advisement.

☐ Emergency plan. Immigration counsel's contact information, a family member authorized to act, and the location of key documents.

Quick Reference: Numbers That Decide Cases

| Number | What it controls | |---|## Worked Example: Running the Checklist in Forty Minutes

A public defender is assigned a felony theft case. The client is fifty-three, has lived in the United States since he was nine, and mentions in passing that he "has papers."

Phase 1, six minutes. Not a citizen — his parents naturalized after he turned eighteen, so derivation under 8 U.S.C. § 1431 does not apply. Lawful permanent resident, admitted 1981. Deportability grounds under 8 U.S.C. § 1227 govern. He has never traveled abroad and has no pending applications. His objective is to keep his status; naturalization is a secondary interest.

Phase 2, twelve minutes. One prior: a 2004 misdemeanor for driving on a suspended license, statutory maximum ninety days, sentence thirty days. Not a moral turpitude offense on those elements. No other history.

Phase 3, ten minutes. The state theft statute is indivisible and reaches temporary takings, which is broader than the generic definition requiring intent to deprive permanently. That is a categorical mismatch argument for both the aggravated felony theft category and the moral turpitude classification — a strong fallback if the plea goes badly.

Phase 4, five minutes. Theft with a one-year sentence would be an aggravated felony under 8 U.S.C. § 1101 if the categorical argument fails. Moral turpitude deportability requires either commission within five years of admission — 1981 admission, so no — or two convictions, and there is only one candidate. No drug, firearms, or domestic violence exposure.

Phase 5, four minutes. Cancellation under 8 U.S.C. § 1229b is available if needed: forty-four years of residence, permanent resident status well beyond five years, no aggravated felony if the sentence stays below one year. Mandatory detention under 8 U.S.C. § 1226 would attach to an aggravated felony charge.

Phase 6, three minutes. Target: 364 days maximum, and preferably a plea to a lesser offense. The prosecutor offers 365 days suspended. Counsel asks for 364. The prosecutor, who has never thought about the difference, agrees without a counteroffer.

Forty minutes of work; the client keeps a life he has had for forty-four years.

⭐ Key insight. The most valuable thing in this checklist is not any single item. It is the habit of running Phases 1 and 2 in every case, because they take twenty minutes and they identify the cases where the remaining phases matter.

Worked Example: The Case That Should Not Have Been a Plea

A client with a pending asylum application is charged with a drug offense. Counsel, unaware of the immigration dimension, negotiates a plea to possession with a suspended sentence — an unremarkable outcome that would ordinarily be a good result.

The consequences were not unremarkable. The conviction created inadmissibility and deportability under the controlled substance grounds, foreclosed most waivers under 8 U.S.C. § 1182, triggered mandatory detention under 8 U.S.C. § 1226, and — depending on the classification — threatened the asylum claim under 8 U.S.C. § 1158.

Three things would have changed the outcome. Phase 3 would have revealed that the state schedule included substances not federally controlled, raising a categorical mismatch argument. Phase 6 would have identified a non-drug substitute offense the prosecutor was willing to accept. Phase 7 would have documented an advisement that, if the plea still went forward, would at least have made the client's choice an informed one.

The post-conviction motion eventually succeeded, three years and a detention later. Everything about that outcome was more expensive than the twenty-minute conversation that would have prevented it.

A Twenty-Minute Screen for Every Case

Not every case needs the full checklist. Every case needs this.

☐ Is the client a United States citizen? If unsure, run the derivation and acquisition questions before anything else.

☐ If not a citizen, what is the status and when was the person admitted?

☐ What statute is charged, and what is its statutory maximum?

☐ What sentence is being discussed, including suspended time?

☐ Is the offense a drug offense, a firearms offense, or an offense with a domestic relationship element?

☐ Is there any prior conviction that could be a crime involving moral turpitude?

☐ Has immigration counsel been consulted?

If the answers to questions three through six raise any flag, run the full checklist before discussing a disposition with the prosecutor. If they do not, document the screen and proceed.

☐ Finally, calendar a reminder to revisit the analysis if the sentence changes, if probation is revoked, or if a new charge is filed — each of those events can convert a safe disposition into a disqualifying one months or years later.

That last item catches a surprising number of cases. A disposition that was carefully engineered at 364 days becomes an aggravated felony when probation is revoked and the suspended term is imposed in full, and nobody is watching for it because the original file was closed. Set the reminder when the case closes, not when the problem appears.

It costs one calendar entry and it prevents the failure mode that no amount of careful drafting can reach.

---| | 364 days | Sentence ceiling avoiding the one-year aggravated felony categories | | One year | Statutory maximum ceiling for the petty offense exception | | Six months | Sentence ceiling for the petty offense exception | | Five years | Window after admission for the single moral turpitude deportability ground | | Two convictions | Moral turpitude deportability at any time, absent a single scheme | | $10,000 | Loss threshold for the fraud aggravated felony | | 30 grams | Marijuana exception to the controlled substance deportability ground | | Seven years | Continuous residence for permanent resident cancellation | | Five years | Permanent residence required for cancellation | | Ten years | Continuous physical presence for non-permanent resident cancellation | | 180 days | Confinement triggering a conditional good moral character bar |

Red Flags

⚠ A proposed sentence of exactly 365 days, or any sentence "of one year." ⚠ Any drug offense, including paraphernalia and possession in a legalized state. ⚠ Any firearms offense. ⚠ A plea colloquy that adopts the police report as the factual basis. ⚠ A restitution figure above ten thousand dollars in a fraud case. ⚠ A domestic relationship element in an assault statute. ⚠ A second moral turpitude conviction of any kind. ⚠ Advice that an expungement will solve the problem. ⚠ A client with international travel planned. ⚠ A pending naturalization application.

Common Mistakes

1. Not asking about citizenship status at intake.
2. Recording charge names instead of statutes.
3. Accepting a 365-day suspended sentence because no time will be served.
4. Assuming a misdemeanor is safe.
5. Skipping the divisibility analysis and conceding a categorical match.
6. Stipulating to the police report.
7. Treating deferred adjudication as a non-conviction.
8. Relying on state expungement.
9. Failing to check whether the client is already a citizen.
10. Advising travel without an admissibility analysis.
11. Filing for naturalization before resolving the conviction.
12. Missing a short state post-conviction deadline.

Related Documents

• Crimes and immigration consequences: a comprehensive guide to inadmissibility, deportability, and relief
• The plea that ends the green card: how crimes and immigration actually collide
• The immigration consequences and plea negotiation toolkit
• Removal defense: a comprehensive guide
• Preparing for a removal hearing and pursuing relief: a practical checklist
• Immigration detention, bond, and custody: a comprehensive guide
• Naturalization and citizenship: a comprehensive guide
• Criminal record relief: a comprehensive guide
• Petitioning to expunge or seal a criminal record: a practical checklist
• The criminal case from arrest to sentencing: a comprehensive guide
• Preparing for sentencing and pursuing early release: a practical checklist
• Asylum and humanitarian relief: a comprehensive guide
• The notice to appear: what actually happens in immigration court