Criminal Matters Affecting Immigration Status
Where criminal and immigration law collide — get one team for both.
The intersection of criminal law and immigration law is the area where the most damage gets done quietly — through guilty pleas entered without anyone realizing what they meant for the defendant's status, through deferred prosecutions that turn out to be deportable convictions, through trial strategies that won the criminal case and lost the immigration case at the same time. The Supreme Court's decision in Padilla v. Kentucky obligates criminal defense counsel to advise non-citizen clients about the immigration consequences of any plea, and it created the foundation for what has become an entire field of practice. Our office handles both sides of that intersection with the same lawyers, in the same files, on the same strategy.
Why a criminal lawyer alone is not enough for a non-citizen defendant
United States immigration law treats certain criminal convictions as automatically deportable, certain others as crimes involving moral turpitude that trigger removal in defined circumstances, and certain others as aggravated felonies that produce mandatory detention, ineligibility for most forms of relief, and permanent inadmissibility. The category designations do not always match the criminal labels. A misdemeanor in state court can be an aggravated felony for immigration purposes. A plea that avoids jail can still trigger mandatory removal. A charge that the prosecutor considers minor can end a permanent resident's life in the United States.
A criminal defense lawyer who does not understand those categorizations — and most do not — can negotiate a plea that looks like a victory in criminal court and is a disaster in immigration court. The defendant accepts the deal, the case closes, and weeks or months later ICE detainers and notices to appear arrive in the mail. By then, the criminal case is closed and the immigration consequences cannot be unwound except through complex post-conviction litigation. The right time to involve immigration counsel is before any plea is entered, not after.
How we analyze a charge for immigration consequences
When a non-citizen is charged with a criminal offense, our analysis begins with the specific statute under which the charge is brought, the elements that the State must prove, and the way the offense has been categorized by the relevant immigration authorities and federal courts. We apply the categorical approach — the framework the Supreme Court has set out for determining whether a state offense matches a federal immigration definition — to the actual elements of the charge. We then evaluate whether any modification of the charge or any restructuring of the plea could place the offense outside the deportable categories.
This work is technical, fact-intensive, and constantly changing. Cases like Mathis v. United States, Sessions v. Dimaya, and Borden v. United States have reshaped the categorical approach, and immigration law continues to evolve in response. We follow that case law closely, and we apply it to each case as it comes in. The goal is always to identify a disposition that satisfies the criminal court while avoiding the immigration consequence that destroys the client's life.
Negotiating an immigration-safe plea
Many prosecutors are willing to negotiate the structure of a plea — the specific charge, the specific elements, the specific factual basis — in ways that preserve criminal accountability while avoiding the worst immigration consequences. Reducing a possession charge to a non-controlled-substance offense. Pleading to a generic disorderly conduct rather than to a domestic battery. Accepting a fine and probation rather than the lesser sentence that triggers an aggravated felony designation. Each of these can be the difference between a defendant who returns home to their family and a defendant who is deported.
The negotiation requires credibility on both sides. The prosecutor has to believe that the defense is serious about going to trial if the plea cannot be structured properly. The defense has to be prepared to make that case if the negotiation fails. We bring that combination of trial readiness and immigration sophistication to every plea negotiation we conduct, and the results often look modest in the criminal record while changing everything in the immigration analysis.
Padilla post-conviction relief — fixing what was done wrong before
Many of our clients come to us after a prior plea that was entered without proper advice about its immigration consequences. Padilla v. Kentucky and its progeny established that criminal defense counsel has a constitutional obligation to advise a non-citizen defendant about the immigration consequences of a plea, and that the failure to do so can constitute ineffective assistance of counsel — grounds to vacate the conviction.
We handle Padilla post-conviction litigation in Illinois state courts and in federal court where appropriate. The petitions require a careful factual record, including affidavits from the original defense counsel, evidence of what the petitioner was told and not told, and a showing that the petitioner would have made a different decision had they been properly advised. The standard is demanding, but the relief — vacatur of a conviction that has triggered removal proceedings — can be the difference between deportation and reunification with family. Many of our clients have been able to terminate removal proceedings and adjust status as a result of a successful Padilla motion.
Many of our clients come to us after a prior plea that was entered without proper advice about its immigration consequences. Padilla v. Kentucky and its progeny established that criminal defense counsel has a constitutional obligation to advise a non-citizen defendant about the immigration consequences of a plea, and that the failure to do so can constitute ineffective assistance of counsel — grounds to vacate the conviction.
— Law Offices of Scott Gordon, PC
Coordinating defense in active removal proceedings
When a non-citizen has both an open criminal case and an active removal case, the two proceedings must be managed together. Statements made in criminal court can be used in immigration court. The disposition of the criminal case determines whether forms of relief from removal remain available. The immigration outcome can affect the relevance of the criminal case to professional licensing, civil litigation, and family court.
We handle both cases in the same office, with the same lawyers managing both. We coordinate court schedules, witness preparation, and disclosures so that the strategic choices in one proceeding support rather than undermine the other. Where removal proceedings are pending against a client we are also defending criminally, we routinely move for continuances in the immigration court that allow the criminal case to resolve favorably before the removal case advances. That coordination is one of the most valuable things our combined practice provides.
Detention, ICE detainers, and the emergency response
For non-citizens in criminal custody, an ICE detainer can transform what looked like a manageable criminal case into a sudden detention crisis. The detainer is a request that the local jail hold the defendant for up to forty-eight hours after the criminal case resolves, so that ICE can take custody and initiate removal proceedings. In practice, this often means that a client posting bond on a state case is transferred directly to ICE detention.
We respond to ICE detainer situations urgently. We seek release on bond in the criminal case in a manner that preserves the immigration posture. We file representations in the immigration case to support release on immigration bond where it is available. We work with our clients' families on the practical logistics — the location of detention, the ability to visit, the arrangements for children and household — that the immigration system rarely accommodates on its own. The work is difficult and often emotional, and it is what our office is built to do.
What it means to have one firm for both
There are very few law firms that handle both serious criminal defense and complex immigration litigation under the same roof. Most clients with crimmigration exposure end up with two lawyers from two firms, neither of whom fully understands what the other is doing, communicating through the client about strategic decisions that should be made jointly. The result is, predictably, that the cases do not work together as well as they should.
In our office, both practices share the same files, the same case strategy, and the same client relationships. The criminal defense lawyers and the immigration lawyers sit in the same conference room. The decisions get made together. The clients have one number to call. That structure is unusual, and it is the reason crimmigration clients seek us out specifically. The work is what we do, and it is what we are built for.
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