The Immigration Consequences and Plea Negotiation Toolkit

Immigration > Crimes and Immigration Consequences | Published 25 October 2024 - Updated 13 October 2025 | UpLaw - uplaw.us

What Is in This Toolkit

Twelve working documents in the order a case uses them, plus reference tables.

The doctrine is in crimes and immigration consequences. The narrative orientation is the plea that ends the green card. The sequenced analysis is analyzing the immigration consequences of a criminal case.

Decision Map

Situation	Instrument	Also read
New client, status unknown	Intake questionnaire (Form 1)	Naturalization and citizenship
Assembling the record	History worksheet (Form 2)	Checklist, Phase 2
Determining whether a ground applies	Categorical worksheet (Form 3)	Guide, Part 9
Choosing a disposition	Safe plea table (Form 4)	Guide, Part 14
Negotiating	Prosecutor letter (Form 5)	The criminal case from arrest to sentencing
Before the plea	Advisement letter (Form 6)	Checklist, Phase 7
At the plea	Colloquy script (Form 7)	Guide, Part 9
Sentence created the problem	Modification motion (Form 8)	Preparing for sentencing and pursuing early release
Plea already entered	Vacatur outline (Form 9)	Criminal record relief
Detention likely	Family plan (Form 10)	Immigration detention, bond, and custody
Case closing	Travel advisory (Form 11)	Removal defense
Client wants to naturalize	Pre-screen (Form 12)	Guide, Part 12

Form 1 — Status Intake Questionnaire

Client: ______ Matter: ______ Date: ______

1. Citizenship. Are you a United States citizen? ☐ Yes ☐ No ☐ Unsure Where were you born? ______ Were either of your parents United States citizens when you were born? ______ Did either parent naturalize before you turned eighteen? ______ If yes, were you a lawful permanent resident and in that parent's legal custody at the time? ______ [If the answers suggest acquisition under 8 U.S.C. § 1401 or 8 U.S.C. § 1409, or derivation under 8 U.S.C. § 1431, stop and investigate before anything else.]

2. Status. ☐ Lawful permanent resident (card number, date) ☐ Conditional resident ☐ Nonimmigrant (category, expiration) ☐ Asylee ☐ Refugee ☐ Temporary protected status ☐ Parole ☐ Pending application ☐ No status ☐ Unsure

3. Entry. Date of first entry: ______ Manner: ______ Date of most recent admission: ______ Manner: ______

4. Prior immigration history. Prior applications: ______ Prior denials: ______ Prior removal or voluntary departure: ______ Prior detention: ______

5. Family. Citizen or permanent resident spouse: ______ Children and their status: ______ Parents and their status: ______

6. Plans. Any travel planned? ______ Any application planned or pending? ______

7. Objective. What matters most: ☐ keeping current status ☐ becoming a citizen ☐ obtaining status ☐ avoiding detention ☐ other ______

Drafting notes. Question 1 exists because a meaningful number of people believed to be noncitizens are in fact citizens by derivation and have never been told. Establishing citizenship ends the analysis and the case's immigration dimension entirely. Ask it first, every time, of every client.

Form 2 — Criminal History Worksheet

#	Jurisdiction	Statute (number and subsection)	Offense date	Disposition date	Plea type	Sentence imposed	Suspended portion	Statutory maximum	Certified records obtained
1
2

For each entry, also record:

• Was adjudication withheld? Was there a plea or admission of sufficient facts? Was any penalty, punishment, or restraint imposed? (All three together make it a conviction under 8 U.S.C. § 1101.)
• Was probation revoked, and was a suspended term imposed?
• Was the case expunged, sealed, or set aside — and on what ground: rehabilitation, or a legal defect?
• Was it a juvenile delinquency adjudication?
• Is a direct appeal pending?

Drafting notes. The two columns people omit are the statutory maximum, which controls the petty offense exception, and the suspended portion, which controls the aggravated felony sentence categories. Record statutes and subsections; charge names are useless for this analysis.

Form 3 — Categorical Approach Worksheet

Statute: ______ Version in effect on the offense date: ______

1. Elements. List each element the prosecution must prove and on which a jury must agree unanimously:

---

2. Full scope. What is the least culpable conduct the statute realistically reaches? Cite state cases or the statutory text:

---

3. Generic definition. Which federal generic definition is being compared, and what does it require? ☐ Aggravated felony category: ______ ☐ Crime involving moral turpitude ☐ Controlled substance ☐ Firearms ☐ Domestic violence ☐ Crime of violence (elements clause only, per 18 U.S.C. § 16 after Sessions v. Dimaya, 584 U.S. 148)

4. Categorical match? ☐ Yes ☐ No — statute is broader If broader, cite the overbreadth: ______ (Model: Moncrieffe v. Holder, 569 U.S. 184.)

5. Divisibility. Does the statute list alternative elements or alternative means? Evidence: state jury instructions ______ ; state case law ______ ; charging practice ______ (Alternative means do not create divisibility: Mathis v. United States, 579 U.S. 500. The modified approach is unavailable for indivisible statutes: Descamps v. United States, 570 U.S. 254.)

6. If divisible, what does the record establish? Permissible documents only: charging instrument ☐ written plea agreement ☐ plea colloquy ☐ judicial factual basis record ☐ jury instructions ☐ Alternative established: ______

7. Conclusion. ☐ Ground applies ☐ Ground does not apply ☐ Arguable — basis: ______

8. Plea implication. What disposition avoids the ground? ______

Drafting notes. Complete this once per statute, not once per case, and keep a library. Divisibility research is expensive and reusable; a public defender office that maintains worksheets for its twenty most common charges has done most of its immigration work permanently.

Form 4 — Safe Plea Comparison Table

Candidate offense	Statute	Max	Proposed sentence	Aggravated felony?	Moral turpitude?	Controlled substance?	Firearms?	DV element?	Verdict
Original charge
Alternative A
Alternative B

Frequently safer candidates (verify in your jurisdiction): trespass; disorderly conduct; criminal mischief or property damage without an intent-to-defraud element; simple assault without a domestic relationship element; accessory after the fact; unlawful use of a communication device; loitering.

Frequently dangerous: any controlled substance offense including paraphernalia; any firearms offense; theft or burglary with a one-year sentence; fraud with loss exceeding $10,000; any offense with a domestic relationship element; obstruction with a one-year sentence.

Drafting notes. Verify every "safe" candidate against Form 3 in your own jurisdiction. Offenses that are safe in one state are not necessarily safe in another, because the elements differ.

Form 5 — Letter Proposing an Alternative Disposition

Dear ______,

I represent ______ in the above matter. I write to propose a disposition that resolves the case on terms equivalent to your current offer while avoiding a collateral consequence that is disproportionate to the offense.

My client is a lawful permanent resident who has lived in this country since ______. He has ______ children who are United States citizens and has worked at ______ for ______ years.

Your current offer contemplates a plea to ______ with a sentence of 365 days, suspended. Because immigration law counts a suspended sentence as a term of imprisonment, that disposition would classify the offense as an aggravated felony under 8 U.S.C. § 1101. The consequences are automatic: mandatory detention under 8 U.S.C. § 1226, removal under 8 U.S.C. § 1227 with no eligibility for cancellation under 8 U.S.C. § 1229b, and permanent separation from his family.

I propose either: (a) the identical plea with a sentence of 364 days rather than 365; or (b) a plea to ______, with the same probation conditions, restitution, and supervision your office has proposed.

Either alternative preserves everything your office is seeking — accountability, supervision, restitution, and a conviction on the record — while avoiding a consequence that no one in this case intends. I am glad to discuss.

Drafting notes. Two features make this letter work. It concedes the criminal outcome entirely, so the prosecutor is not being asked to give anything up. And it explains the mechanism, because most prosecutors have never been told that a suspended sentence counts and are genuinely surprised. Keep it short and unemotional; a letter that argues about immigration policy gets a different answer than one that identifies a technical mismatch.

Form 6 — Written Advisement Letter

Dear ______,

This letter confirms the advice I have given you about the immigration consequences of the disposition we discussed, as required by Padilla v. Kentucky, 559 U.S. 356.

Your status. You are a ______, admitted on ______.

The proposed disposition. A plea to ______ with a sentence of ______.

The immigration consequence. [Choose one:] ☐ This disposition will make you deportable under 8 U.S.C. § 1227. Removal proceedings are likely, and the relief available to you would be limited to ______. ☐ This disposition does not, in my analysis, trigger a ground of deportability or inadmissibility, for the reasons set out in the attached worksheet. ☐ The consequence is uncertain because ______. There may be adverse immigration consequences, including removal.

Other consequences. [Detention under 8 U.S.C. § 1226; effect on travel; effect on naturalization under 8 U.S.C. § 1427; effect on any pending application under 8 U.S.C. § 1255.]

Alternatives I considered. ______ , and why each was or was not available: ______

Your options. You may accept this disposition, seek a different one, or go to trial. A trial carries the risk of ______ , and a conviction after trial would have the following immigration consequences: ______. You may rationally prefer trial even where conviction is likely, if the plea carries certain removal; see Lee v. United States, 582 U.S. 357.

Please confirm that you understand this advice and tell me how you wish to proceed.

Drafting notes. The advisement protects the client first and counsel second. The paragraph about trial matters: a defendant facing certain deportation may reasonably prefer a small chance of acquittal, and recording that the choice was explained is what distinguishes an informed decision from a later claim of ineffective assistance.

Form 7 — Plea Colloquy Script

Factual basis, minimal form. "On or about [date], in [county], the defendant [track only the elements of the safe alternative]. That is the factual basis, your Honor."

If asked to adopt the police report: "Your Honor, the defendant does not stipulate to the police report as the factual basis. He offers the factual basis stated on the record, which satisfies each element of the offense of conviction."

If the statute is divisible: "For the record, the plea is to subsection ______ of the statute, and the factual basis is directed to that subsection only."

If restitution is contested in a fraud case: "The defendant agrees to restitution in the amount of $______ as a term of probation. The parties do not stipulate to any finding regarding loss amount for any other purpose."

Drafting notes. Under the modified categorical approach, the plea colloquy is one of the few documents an adjudicator may consult. That makes it a place where a case is won or lost. Prepare the language in advance and give it to the client; improvised colloquies produce admissions nobody intended.

Form 8 — Sentence Modification Motion Outline

I. Relief requested. Modification of the sentence from 365 days to 364 days. II. Procedural history. Plea, sentence, and current status of supervision. III. Legal authority. The court's authority to modify under [state provision]; the standard; and the timing. IV. Grounds. [Articulate a legal basis independent of immigration: disproportion to similarly situated defendants; a factor not considered at sentencing; completion of conditions; new information about the defendant's circumstances.] V. Effect. A one-day reduction places the sentence below the threshold that classifies the offense as an aggravated felony under 8 U.S.C. § 1101, which would otherwise mandate detention under 8 U.S.C. § 1226 and foreclose cancellation under 8 U.S.C. § 1229b. VI. No prejudice. The People's interests in supervision, restitution, and accountability are unaffected. VII. Conclusion.

Drafting notes. Section IV is the load-bearing part. A modification entered solely to avoid immigration consequences may not be given effect; one entered on a legal ground, with the immigration effect noted as a consequence rather than the reason, generally is. Order the motion accordingly.

Form 9 — Vacatur Motion Outline

I. Relief requested. Vacatur of the conviction and withdrawal of the plea. II. Facts. Client's status and length of residence; the charge; the plea; the advice given or not given; the consequence that followed. III. Standard. Deficient performance and prejudice; state vehicle and any deadline. IV. Deficient performance. Counsel failed to determine the client's status, failed to research the consequence, or gave affirmative misadvice. Under Padilla v. Kentucky, 559 U.S. 356, counsel must give correct advice where the consequence is clear from the statute, and must at minimum warn of possible adverse consequences where it is not. A generic judicial advisement does not cure the failure. V. Prejudice. The client would have rejected the plea. Evidence: length of residence; family ties; the centrality of immigration status to the client's decision-making; the availability of an alternative disposition that carried no consequence; and, where applicable, a willingness to go to trial notwithstanding the odds — Lee v. United States, 582 U.S. 357. VI. Timeliness. [Address the state deadline and any tolling.] VII. Declarations. Client; prior counsel if available; immigration counsel on the consequence. VIII. Conclusion.

Drafting notes. Section V is where these motions succeed or fail. Contemporaneous evidence — what the client said at the time, what alternatives existed, what the client's life looked like — beats a retrospective declaration. A declaration from immigration counsel explaining that a safe alternative existed and would have been accepted is the single most persuasive exhibit.

Form 10 — Detention and Family Preparedness Plan

If I am detained:

Immigration counsel: ______ Phone: ______ Criminal counsel: ______ Phone: ______ Emergency contact: ______ Relationship: ______ Phone: ______

Children. Names, ages, schools: ______ Person authorized to care for them: ______ (caregiver authorization or guardianship documents located at ______)

Finances. Accounts and access: ______ Power of attorney executed: ☐ Yes ☐ No — located at ______ Rent or mortgage, utilities, and who will pay: ______

Employment. Employer contact: ______ What to tell them: ______

Documents. Location of: permanent resident card ______ ; passports ______ ; birth certificates ______ ; certified criminal dispositions ______ ; immigration file ______ ; written advisement letter ______

Medical. Medications and prescribing physician: ______

Country contacts, if removal occurs: ______

Drafting notes. Prepare this before a plea in any case where mandatory detention under 8 U.S.C. § 1226 is a realistic possibility. Detention typically begins at release from criminal custody, with transfer to a distant facility, and families that have not prepared lose weeks to logistics that could have taken an afternoon.

Form 11 — Travel and Applications Advisory

Dear ______,

Now that your criminal case has concluded, this letter records advice about three situations where the disposition could matter.

1. International travel. Leaving the United States can cause you to be treated as an applicant for admission on return, judged under the inadmissibility grounds at 8 U.S.C. § 1182 rather than the deportability grounds at 8 U.S.C. § 1227. Those rules are harsher in several respects. Do not travel outside the United States without consulting immigration counsel first.

2. Applications. Any application for naturalization under 8 U.S.C. § 1427, adjustment under 8 U.S.C. § 1255, or an extension or change of status under 8 U.S.C. § 1184 triggers a full review of your record. Consult counsel before filing anything.

3. Interviews and questions. Answer truthfully. Do not volunteer information beyond the question asked. An admission of the essential elements of certain offenses can create inadmissibility even without a conviction.

4. Marijuana. State legalization does not change federal immigration law. Do not admit use, do not work in a licensed cannabis business, and do not carry marijuana across any border or through any airport.

5. Future cases. A second conviction — particularly a second crime involving moral turpitude — would have far greater consequences than this one. Call me before speaking with police about any new matter.

Keep this letter with your immigration documents.

Drafting notes. Give this to every noncitizen client at case closing, including those whose disposition was safe. The travel and marijuana paragraphs prevent more damage than any other advice in this toolkit.

Form 12 — Naturalization Pre-Screen

☐ Is the applicant a lawful permanent resident for the required period? ☐ Any aggravated felony conviction on or after the statutory date? (Permanent bar to good moral character.) ☐ Any conviction during the statutory period for: a controlled substance offense other than a single simple possession of thirty grams or less of marijuana; two or more offenses with aggregate sentences of five years; confinement of 180 days or more; a crime involving moral turpitude; unlawful gambling; false testimony for an immigration benefit? ☐ Any conduct outside the statutory period bearing on discretion? ☐ Any unresolved conviction, pending charge, or open warrant? ☐ Any prior removal order or unlawful reentry under 8 U.S.C. § 1326? ☐ Any false claim to citizenship or unlawful voting? ☐ Any admission of drug use, including marijuana in a state where it is lawful? ☐ Has a categorical analysis been run on every conviction?

Do not file if any box raises a question that has not been resolved.

Drafting notes. The last line is the point. A naturalization application invites full record review, and applicants with unresolved convictions are routinely placed in removal proceedings as a direct result of applying. Resolve first; file second.

Reference Tables

Thresholds

Number	Controls
364 days	Sentence ceiling avoiding 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 after admission	Window for the single moral turpitude deportability ground
Two convictions	Moral turpitude deportability at any time absent a single scheme
$10,000	Fraud loss threshold
30 grams	Marijuana exception, deportability only
Five / seven years	Permanent residence and continuous residence for cancellation
Ten years	Continuous physical presence, non-permanent resident cancellation
180 days	Confinement triggering a conditional good moral character bar

Relief bars at a glance

Relief	Aggravated felony	Controlled substance	Two moral turpitude convictions
Cancellation, permanent resident — 8 U.S.C. § 1229b	Barred	Discretionary factor	Discretionary factor
Cancellation, non-permanent resident	Barred	Generally barred	Generally barred
Asylum — 8 U.S.C. § 1158	Barred	Case by case	Case by case
Withholding — 8 U.S.C. § 1231	Barred if particularly serious	Case by case	Case by case
Torture protection	Not barred	Not barred	Not barred
Adjustment — 8 U.S.C. § 1255	Inadmissible	Inadmissible, rarely waivable	Waiver may be available
Voluntary departure — 8 U.S.C. § 1229c	Barred	Available if character met	Character question
Naturalization — 8 U.S.C. § 1427	Permanently barred	Conditional bar	Conditional bar

Decisions to cite

Decision	Use
Padilla v. Kentucky, 559 U.S. 356	Duty to advise; vacatur ground
Lee v. United States, 582 U.S. 357	Prejudice despite likely conviction
Moncrieffe v. Holder, 569 U.S. 184	Overbroad drug statute
Carachuri-Rosendo v. Holder, 560 U.S. 563	Second simple possession
Descamps v. United States, 570 U.S. 254	No modified approach for indivisible statutes
Mathis v. United States, 579 U.S. 500	Elements versus means
Esquivel-Quintana v. Sessions, 581 U.S. 385	Federal generic definition controls
Sessions v. Dimaya, 584 U.S. 148	Residual clause invalid
Barton v. Barr, 590 U.S. 222	Stop-time rule

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
• Analyzing the immigration consequences of a criminal case: a practical checklist
• Removal defense: a comprehensive guide to charges, relief, hearings, and appeals
• Responding to a notice to appear: a removal defense checklist
• Preparing for a removal hearing and pursuing relief: a practical checklist
• The notice to appear: what actually happens in immigration court
• Immigration detention, bond, and custody: a comprehensive guide
• Held without a sentence: how immigration detention and bond actually work
• Naturalization and citizenship: a comprehensive guide
• Acquiring US citizenship through parents: birthright and derivative paths
• Asylum and humanitarian relief: a comprehensive guide
• Criminal record relief: a comprehensive guide
• Petitioning to expunge or seal a criminal record: a practical checklist
• The criminal record relief and reentry toolkit
• The criminal defense toolkit
• The criminal case from arrest to sentencing: a comprehensive guide
• Sentencing and corrections: a comprehensive guide
• Preparing for sentencing and pursuing early release: a practical checklist
• The immigration and citizenship toolkit
• The cannabis compliance and record relief toolkit