Under U.S. immigration law, there is a world of difference between being sentenced to probation and being sentenced to jail but with the jail term suspended. The latter can have dire immigration consequences, even though there may be no meaningful consequences under state criminal law.

Under U.S. immigration law, a suspended term of jail or imprisonment for a criminal offense is considered the same as actually serving that time in prison. Rather than classification of the crime, the law looks at the term of imprisonment. This means that it usually doesn’t matter whether the offense is classifiable as a felony or misdemeanor.  The length of the sentence is especially important because the provisions that refer to “removability” often reference the term of imprisonment to determine whether a person is removable from the U.S. for the crime.  The length of sentence, in turn, also determines whether there is relief available in the form of a waiver from deportation. This is true whether an individual is on a nonimmigrant visa or is a permanent resident.

Most people aren’t criminals and don’t engage in behavior that is normally considered felonious.  But, let’s look at shoplifting.  Often, an individual convicted for misdemeanor shoplifting is sentenced to one year suspended. Perhaps the criminal defense attorney recommended this strategy because it means no jail time, no felony under state law, and even an eventual expungement of the record. The result is no criminal record of consequence.  Not so under immigration law.  Immigration law states that if an individual is sentenced to a year or more for a theft crime, then the crime shall be classified as an “aggravated felony,” even if the original crime was classified as a misdemeanor. An aggravated felony charge under immigration law is extremely serious. It almost always means that the individual — lawful permanent resident and nonimmigrant alike — will be placed in “mandatory detention” and cannot be released on bond.  Furthermore, with the current backlog in the immigration courts, such a person detained under the “mandatory detention” provisions will be held for many months awaiting a hearing before an immigration judge. Finally, a charge of “aggravated felony” limits the availability of relief from deportation that may be available. Thus, even long-time permanent residents who are convicted of an aggravated felony can and often are deported to their home country.

The important lesson here for both nonimmigrants and immigrants is to carefully abide by the laws of this country, because even a minor infraction can have serious consequences. In case of an arrest, it is vital that an immigration lawyer be retained to advise the criminal lawyer on possible dispositions that will not result in removability or other longer-term immigration consequences.  A permanent resident should always apply for naturalization as soon as possible so as not to become subject to removal from the U.S.  Finally, if one has an arrest record of any kind, it is important to seek qualified immigration counsel before traveling abroad, renewing the green card, or applying for naturalization.