The impact of the criminal conviction can be long-lasting and devastating. A conviction is usually a permanent record that will never go away. Although Illinois courts have a procedure for expungement and sealing, most felony convictions do not qualify, and very few misdemeanor convictions are eligible.
Unfortunately, the fact that a conviction comes from decades ago is not grounds for relief.
But for someone who was not born in the United States, a criminal conviction has additional consequences.
A person who is not a United States citizen can be deported because of a criminal conviction. This includes lawful permanent residents. They, too, can be deported for a conviction. Permanent residents are immigrants who have been given permission by the United States to live and work in this country for an indefinite time.
Generally speaking, an immigrant must become a permanent resident before he or she may become a citizen.
If an immigrant is subject to deportation proceedings, his length of residency in America and close relatives who are United States citizens may prevent his deportation. But this is not a certainty. And even if he is not deported, that person will be burdened by years of immigration court litigation causing anxiety and stress.
The Immigration and Nationality Act says that there are three categories of crimes that can place an immigrant at risk of deportation, or prevent that person from ever becoming a lawful permanent resident.
First, the most serious category is aggravated felonies. Aggravated felonies are specifically defined by the Immigration and Nationality Act at 8 USC 1101(a)(43). Although the act calls them felonies, some misdemeanors will qualify as aggravated felonies for purposes of deportation. For example, theft and crimes of violence may qualify. Also, if the offender was sentenced to one year of imprisonment, that crime may also qualify, even if it was a misdemeanor.
Second, an immigrant can be deported for a crime of moral turpitude. A crime of moral turpitude is one that involves dishonesty, deception, or some other base or vile act. A crime of moral turpitude can be a misdemeanor or a felony.
The following offenses can constitute crimes of moral turpitude resulting in deportation:
- Intentional theft
- Intentional infliction of harm
Finally, the third category of crimes that can result in deportation or prevent permanent residency include violations of controlled substances laws, domestic battery, violations of an order of protection, and firearms offenses.
When an immigrant is deported he or she is barred from returning to the United States, and if he or she returns, it is a criminal offense to be present inside United States.
For immigrants who are presently lawful permanent residents, they will have to disclose their criminal history when applying for citizenship. All persons who want to become citizens (or lawful permanent residents, for that matter) must show good character. An offense such as misdemeanor driving under the influence (625 ILCS 5/11-501) will detract from that.
The fact that Illinois courts have a special disposition called supervision is irrelevant to federal immigration authorities. Supervision is available, basically, for first misdemeanor offenses. See 730 ILCS 5/5-6-3.1. It is not a sentence, but rather a continuance under the supervision of the judge. If the defendant does not violate the law, then the charge is dismissed.
But supervision is regarded as a conviction for immigration purposes.
The United States Supreme Court has directed all criminal law attorneys to advise their clients that if they are not citizens, they could be denied citizenship, excluded from the United States, or deported upon their plea of guilty to a crime. This is the requirement of the Padilla v. Kentucky case.
Illinois judges are also required to give defendants these advisals on accepting a plea of guilty. If the defendant is not so advised, he may be entitled to take back his guilty plea.
The consequences of a conviction on immigration, arguably, exceed the penalty of imprisonment. Because a jail or prison term has an end, and then life ostensibly resumes itself. But defendants who are not citizens, even permanent residents, should beware of convictions because deportation is forever.