When Criminal and Immigration Consequences Run Together
For non-citizen families, a criminal conviction can trigger two simultaneous legal processes: the criminal case itself, and immigration removal proceedings. In many cases, immigration enforcement begins before the criminal sentence is even complete — ICE detainers are placed on non-citizens in local jails and federal prisons, and removal proceedings can be initiated while someone is still incarcerated.
Families dealing with both a criminal case and potential deportation face a compressed timeline. Understanding how removal proceedings work — and what options still exist — is critical.
How Removal Proceedings Begin
Immigration and Customs Enforcement (ICE) initiates removal proceedings by filing a Notice to Appear (NTA) with the immigration court. The NTA alleges specific grounds for removal — typically the criminal conviction that triggered deportability.
ICE commonly learns of non-citizen criminal convictions through:
- Secure Communities and PEP programs — fingerprints taken at booking are shared with DHS
- ICE detainers placed on inmates in local jails or federal prisons
- Criminal background checks during immigration applications
- Voluntary disclosure during immigration interviews
Immigration Court Proceedings
Immigration courts are administrative courts within the Department of Justice — they are not federal district courts and operate under different rules. The immigration judge evaluates whether the person is removable as charged and whether any relief from removal is available.
Unlike criminal court, there is no right to a government-appointed attorney in immigration proceedings. Non-citizens may hire counsel at their own expense or find pro bono representation, but many face immigration judges without any legal help.
Possible Defenses and Relief from Removal
Even when a criminal conviction makes someone deportable, relief may still be available:
Cancellation of Removal
Permanent residents (green card holders) who have been admitted for at least 5 years, have continuously resided in the US for at least 7 years, and have not been convicted of an aggravated felony may apply for cancellation of removal. The immigration judge weighs the positive equities (family ties, length of residence, contributions) against the negative (the conviction and other factors).
Asylum and Withholding of Removal
If the person faces persecution in the country of removal based on race, religion, nationality, political opinion, or membership in a particular social group, asylum or withholding of removal may provide protection — even for those with criminal convictions in some circumstances (though serious crimes can bar these forms of relief).
Convention Against Torture
If the person would face torture by or with the acquiescence of a government official in the country of removal, protection under the Convention Against Torture (CAT) may be available regardless of criminal history. This is a higher standard than asylum but applies even to those convicted of aggravated felonies.
Vacating the Underlying Conviction
If the criminal conviction can be vacated — through a post-conviction petition, motion to withdraw a guilty plea, or other relief — the basis for removal may disappear entirely. This is why the two proceedings are so intertwined: success in the criminal court can stop the removal.
The Role of Family Ties
US citizen and lawful permanent resident family members play a significant role in many removal defense strategies. Family ties in the US — a US citizen spouse, children, or parents — are among the most important positive equities in cancellation of removal and other discretionary relief applications.
Family members can:
- Submit declarations and appear at hearings to testify about hardship
- Document the impact of removal on US citizen children
- Support applications for relief through evidence of family integration and community ties
Finding Help
Immigration removal defense after a criminal conviction requires an attorney with expertise in both immigration law and criminal law — called "crimmigration." This is a specialized field. Look for:
- Immigration legal aid organizations in your area (search immigrationadvocates.org)
- Law school immigration clinics
- CLINIC (Catholic Legal Immigration Network) member organizations
- The National Immigration Project of the National Lawyers Guild