From indictment to expungement — immigration law calculates differently than criminal law.

On June 23, 2026, the U.S. Supreme Court ruled 6-3 on the reentry rights of lawful permanent residents with criminal records. This ruling makes it more likely that lawful permanent residents who have been charged, even if not convicted, will be subject to stricter standards upon reentry. However, even without this ruling, the intersection of criminal records and immigration was already a complex issue. If you are a lawful permanent resident with pending criminal charges or a past record, it is crucial to understand the implications of that record under immigration law and what you need to review now. Many people only consider immigration issues after their criminal case has concluded in court, but by then, their options are often significantly limited.

What criminal records are problematic for immigration?

“The USCIS Policy Manual defines crimes involving moral turpitude as acts that are inherently base, vile, or depraved and shocking to the public conscience, and states that this determination is based on the elements of the offense and the intent of the actor, not merely the name of the crime.”

Immigration law broadly categorizes criminal records that can lead to deportation or denial of reentry for permanent residents into two main groups.

The first is a crime involving moral turpitude (CIMT). Crimes that involve dishonest means, such as fraud, theft, embezzlement, and forgery, are representative examples. Certain crimes like domestic violence or crimes against children may also be included in this category. The important point is that even a misdemeanor under state law (a less serious crime than a felony) can be classified as a CIMT. Whether a crime constitutes a CIMT is determined not by its name but by the legal elements that constitute the crime, making it difficult to make a definitive judgment on seemingly minor cases.

However, there is an exception. If CIMT was committed only once, the maximum penalty for the crime is one year or less, and the actual sentence is six months or less, the ‘petty offense exception’ may apply and exclude it from the grounds for denial of entry. However, this exception does not apply if CIMT was committed two or more times or if it is a drug-related offense.

The second is "aggravated felony"—a category of crime that immigration law treats with particular severity. Immigration law lists 21 types of offenses within this category. This includes murder, drug trafficking, and sex crimes. However, even a theft conviction can fall into this category if the sentence is one year or more, and fraud or embezzlement can apply if the amount lost exceeds $10,000. Contrary to its name, aggravated felonies under immigration law can include acts that are classified as misdemeanors under state law. If an offense qualifies as an aggravated felony, not only is the individual subject to deportation, but their eligibility to apply for relief before an immigration judge is severely restricted, and they will be permanently barred from entering the country after deportation. Since different agencies may interpret the same record in different categories, it is essential to have an immigration attorney review the case rather than making a personal determination.

Even before conviction, the danger remains after the record is expunged.

“Federal immigration law, 8 U.S.C. §1101(a)(48)(A), defines ‘conviction’ for immigration purposes to include not only a formal judgment of conviction but also an admission of guilt or a plea of guilty or no contest, and any payment of a fine or penalty, or any other sentence imposed by the court.”

Immigration law deviates from general common sense in criminal law at two points.

First, re-entry can be restricted even without a conviction. Muk Choi Lau, a party in the Blanche v. Lau case, was indicted for selling counterfeit goods in New Jersey but had not yet been convicted. Despite this, he was classified as a ‘new applicant for admission‘ rather than a lawful permanent resident upon his return from abroad. The Supreme Court ruled 6-3 that immigration officers do not need to have ’clear and convincing evidence" before treating a lawful permanent resident as a new applicant for admission. While lawful permanent residents are normally afforded different protections than ordinary aliens upon returning from short overseas trips, those protections are significantly weakened when they have criminal issues. An overseas trip while a criminal case is pending can become the starting point for deportation proceedings.

Second, even if a criminal record is expunged (a process under state law to remove or seal criminal records from court records) in a state court, the conviction will not disappear for immigration purposes. This is because federal immigration law defines ‘conviction" independently. USCIS and ICE can access records that have been expunged under state law, and these records will still be treated as existing during citizenship applications or green card renewal reviews. If you are caught not disclosing expunged records on an application, you will face a much more serious charge of misrepresentation than the original crime. However, unlike expungement for rehabilitation or convenience, a conviction that has been legally overturned due to procedural defects in the trial *may* be recognized as having no prior conviction for immigration purposes. This distinction requires expert judgment.

When litigating a criminal case, immigration must be considered as well.

“In 2010, the Supreme Court ruled in Padilla v. Kentucky (559 U.S. 356) that a criminal defense attorney's failure to inform a non-citizen client of the possibility of deportation upon a guilty plea violates the Sixth Amendment right to counsel.”

In criminal cases, a guilty plea (a procedure to conclude a case by admitting guilt without a trial) can have irreversible consequences in immigration. Particularly for charges that may fall under CIMT (Crimes Involving Moral Turpitude) or aggravated felonies, a guilty plea agreed upon by the defense attorney and prosecutor will be recorded as a conviction that is grounds for deportation under immigration law. A case that ends leniently in criminal law can carry a completely different weight in immigration law.

Following the ruling in Padilla v. Kentucky, criminal defense attorneys have a constitutional obligation to inform non-citizen clients of the immigration consequences of a guilty plea. If the deportation consequences are clear as a matter of law, they must provide accurate advice, and if they are unclear, they must advise of the risk of deportation. However, criminal defense attorneys are often not well-versed in immigration law, necessitating a separate review by an immigration attorney in cases where criminal law intersects with immigration law. If a criminal case is pending, it is advisable to have the immigration consequences of a guilty plea reviewed in advance by an immigration attorney, in addition to the criminal defense attorney.

Even after an admission of guilt, it might not be a complete dead end. If you pleaded guilty without being properly informed of the immigration consequences, you may be able to explore post-conviction relief. In New York, this is often pursued through Section 440 of the Criminal Procedure Law. However, the requirements are strict and the procedures vary by state, so it's crucial to consult with an experienced attorney first.

Four things to check now

“The most frequent question I get from clients who have finalized a criminal case in my office is whether the record will affect their citizenship application, green card renewal, or re-entry. By the time we start reviewing it, there are often irreversible consequences.”

Here are the things permanent residents with a criminal record or pending criminal case should check now.

First, check your criminal record directly. You can check federal-level records through an FBI Identity History Summary (a service where you can request and view criminal records held by the Federal Bureau of Investigation), and you can also view or apply for state court records separately. Even if you believe a record has been expunged, an expert's confirmation is needed on how that record is processed for immigration purposes.

Second, before departing overseas, you must first consult with an immigration lawyer. For permanent residents with a criminal record, overseas travel may not be a simple trip. Even for a short trip, if you have a record that falls under CIMT or aggravated felony, an immigration legal review before departure is essential. This is especially true if you have pending charges.

Third, when filling out immigration-related applications, be honest about your criminal record. Even if the record has been expunged, it is still considered to exist for immigration purposes, and omitting or concealing it on an application will add a charge of misrepresentation, which is far more serious than the original offense. This can lead to the permanent denial of a citizenship application or the revocation of permanent residency. If there is any ambiguity, it is safest to consult with an attorney first.

Fourth, be mindful of any statements regarding criminal matters during immigration inspection. While permanent residents have broader protections at immigration inspection and the right to contest before an immigration judge compared to general non-immigrants, statements made without preparation at the port of entry can be recorded as an ‘admission of guilt’ (a statement interpreted as admitting to a crime outside of judicial proceedings). If you have a criminal record, it is advisable to consult with an attorney to plan your response strategy before entering the country.

Closing remarks

There are three actions a lawful permanent resident with a criminal record needs to take right now. First, consult with an immigration attorney to determine how your record falls under immigration law. Whether it constitutes a crime involving moral turpitude (CIMT), an aggravated felony, or if a petty offense exception may apply cannot be known from the charge alone, and a misjudgment can irrevocably alter your situation with just one trip abroad. Second, if your criminal case is currently ongoing, meet separately with an immigration attorney in addition to your criminal defense attorney to pre-emptively assess the immigration consequences of a guilty plea. Criminal law and immigration law evaluate the same case by entirely different standards. Lastly, even after a conviction has been finalized, if your attorney at the time did not properly inform you of the immigration consequences, you may be able to explore post-conviction relief. The options for addressing a criminal record diminish with time. It is most practical to consult early with an attorney who understands both immigration and criminal law concerning their intersection.

Disclaimer: This column is for general information purposes only and is not legal advice for your specific case. You should always consult with an attorney who specializes in immigration law for your individual case.

Law Offices of Jin D. Cho

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