NOTE: This page was refreshed to explain changes to Illinois law under the Cannabis Regulation and Tax Act. When this Act became state law on January 1, 2020, Illinois officially legalized the recreational possession and use of cannabis as well as modified numerous cannabis-related crimes.
The impact of a 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, it does not matter if a conviction occurred decades ago. It is not grounds for relief in this context. And for someone who was not born in the United States, a criminal conviction has additional consequences.
A person who is not a U.S. 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 they may become a citizen.
If an immigrant is subject to deportation proceedings, their length of residency in the United States and close relatives who are U.S. citizens may prevent deportation. But this is not a certainty. And even without deportation, such a person will likely face the burden of years in immigration court litigation as well as corresponding anxiety and stress.
Under the Immigration and Nationality Act, there are three categories of crimes that can place an immigrant at risk of deportation. These crimes can also prevent that person from ever becoming a lawful permanent resident.
First, the most serious category involves 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 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
- Malice
- Lewdness
Finally, the third category of crimes that can result in deportation or prevent permanent residency includes violations of controlled substance laws, domestic battery, violations of an order of protection, and firearms offenses.
After the Cannabis Tax and Regulation Act took effect in Illinois, even non-residents can possess and use cannabis legally. Furthermore, this Act adjusted the applicable charge and penalty for unlawful possession of 10 grams or less of cannabis. Moving forward, this offense is a civil law violation, punishable only by a fine of $100 to $200.
When an immigrant is deported, they are barred from returning to the United States. And if they return, it is a criminal offense to be present inside the United States.
For immigrants who are presently lawful permanent residents, they will have to disclose their criminal history when applying for citizenship. Any person who wants to become a citizen – or lawful permanent resident, for that matter –must show good character. An offense such as misdemeanor driving under the influence (625 ILCS 5/11-501) might 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-time 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 advisories upon acceptance of a guilty plea. If the defendant is not so advised, they may be entitled to take back their guilty plea.
The consequences of a conviction on immigration arguably, exceed the penalty of imprisonment. A jail or prison term typically ends at some point, allowing life to ostensibly resume itself. But defendants who are not citizens – or even permanent residents –should beware of convictions because deportation is forever.