Criminal convictions and removal
A conviction makes you removable only if it fits one of the grounds Congress wrote into the statute, and whether it fits is decided by comparing the elements of the offense to the federal definition, not by what you actually did. That comparison is the categorical approach. It decides whether the government can prove its charge and which forms of relief are still open, and it is where a large share of criminal-immigration cases are won or lost.
Current as of September 2026. We re-check this page every quarter and after any rule change.
Three questions decide every criminal-immigration case, in this order. Is there a conviction at all, as the immigration statute defines that word? Does the offense of conviction fit a ground of removal, element by element? And if it does, which forms of relief does it close and which does it leave open? The Notice to Appear asserts answers to all three. None of them should be conceded at the master calendar until the certified record of conviction has been read against the statute. How the case moves from the notice to the hearing is on the removal proceedings page; this page is about the conviction itself.
What counts as a conviction
INA 101(a)(48)(A) defines a conviction as a formal judgment of guilt entered by a court. Where adjudication of guilt has been withheld, it also means a plea of guilty or a finding of guilt together with some form of punishment, penalty or restraint on liberty ordered by the judge. That second half is the one that surprises people. A deferred-adjudication disposition in which you pleaded guilty and were placed on probation or ordered to pay a fine can be a conviction for immigration purposes even though the criminal court never entered a judgment and the state does not call it one.
INA 101(a)(48)(B) does the same thing to sentences. A reference to a sentence means the period of confinement the court ordered, regardless of any suspension. A one-year sentence suspended in full is a one-year sentence.
Whether a particular state disposition is a conviction under this definition is the first question in every case, and it is answered from the certified record, not from what the criminal lawyer said the deal was.
The two lists of grounds
Which list applies depends on your posture. If you were admitted to the United States, the government charges you under the deportability grounds in INA 237(a)(2). If you are treated as seeking admission, which includes a person who entered without inspection, a person applying for adjustment of status, who must be admissible under INA 245(a), and in some circumstances a returning permanent resident, the inadmissibility grounds in INA 212(a)(2) apply. The lists overlap but they are not the same.
| Ground | Deportability, INA 237(a)(2) | Inadmissibility, INA 212(a)(2) |
|---|---|---|
| Crime involving moral turpitude | One CIMT committed within 5 years of admission with a possible sentence of one year or longer, 237(a)(2)(A)(i); or two CIMTs not arising out of a single scheme, 237(a)(2)(A)(ii) | One CIMT, 212(a)(2)(A)(i)(I), subject to the petty offense exception |
| Aggravated felony | Any aggravated felony, 237(a)(2)(A)(iii) | No separate ground by that name |
| Controlled substances | Any offense relating to a controlled substance, other than a single offense of simple possession of 30 grams or less of marijuana, 237(a)(2)(B)(i) | Any violation relating to a controlled substance, 212(a)(2)(A)(i)(II); and "reason to believe" the person is a trafficker, 212(a)(2)(C), which requires no conviction at all |
| Firearms | 237(a)(2)(C) | No parallel ground |
| Domestic violence, stalking, child abuse; violation of a protection order | 237(a)(2)(E)(i)-(ii) | No parallel ground |
The petty offense exception
Under INA 212(a)(2)(A)(ii)(II), a single crime involving moral turpitude does not make you inadmissible if the maximum penalty possible for the crime was one year or less and you were sentenced to six months or less. Suspended time counts toward the six months under 101(a)(48)(B). The exception belongs to the inadmissibility list only. The deportability ground for a single CIMT has its own test, committed within five years of admission with a possible sentence of one year or longer, and a misdemeanor with a one-year maximum can be inside the petty offense exception for inadmissibility and still a ground of deportability. Which list applies to you is therefore not an academic question.
Aggravated felonies
The term is defined by the list in INA 101(a)(43). It is a term of art: whether an offense is on the list is decided by the federal definition, not by what the state calls the crime or how the state classifies it. Some entries describe an offense by name, and some turn on the sentence imposed, which is why the suspended-sentence rule in 101(a)(48)(B) matters so much. Whether a given conviction fits an entry is decided under the categorical approach described below.
An aggravated felony conviction closes more doors than any other criminal ground. It is a ground of deportability under 237(a)(2)(A)(iii), a bar to good moral character under INA 101(f), and a mandatory-detention ground under INA 236(c). It also forecloses most of the relief on this site.
| Relief | Effect of an aggravated felony conviction | Authority |
|---|---|---|
| Cancellation for permanent residents | Barred. No aggravated felony conviction is the third element | INA 240A(a) |
| Cancellation for non-permanent residents | Barred, along with any other conviction under 212(a)(2), 237(a)(2) or 237(a)(3) | INA 240A(b)(1)(C) |
| VAWA cancellation | Barred | INA 240A(b)(2) |
| Voluntary departure | Barred, both before and at the conclusion of proceedings | INA 240B(a), (b) |
| Asylum | Barred. Withholding and CAT have their own rules, covered on asylumadvocate.com | INA 208 |
| The 212(h) waiver | Barred only for a person who entered the United States as a permanent resident at a port of entry; a person who adjusted status inside the country is not subject to the bar | INA 212(h); Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) |
| Former 212(c) relief | Barred only if you served five years or more for it, and only for pleas taken between Nov. 29, 1990 and Apr. 24, 1996 | former INA 212(c); 8 C.F.R. 1212.3(f)(4) |
The list is the reason the aggravated felony question is litigated so hard. If the conviction is not an aggravated felony under the categorical approach, the whole right column changes.
The categorical approach
The Supreme Court has held, in Moncrieffe v. Holder, 569 U.S. 184 (2013), Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 579 U.S. 500 (2016), that an immigration judge deciding whether a conviction fits a ground of removal compares the elements of the offense of conviction to the generic federal definition, element by element. The judge does not ask what you did. The judge asks what the statute requires the prosecution to prove, and whether the minimum conduct the statute criminalizes would fit the federal definition. If the least serious thing a person could be convicted of under that statute is outside the federal definition, the conviction does not match, whatever the police report says.
Descamps and Mathis limit when the judge may look at the record of conviction at all. Only where a statute is divisible, meaning it sets out alternative elements that define separate crimes rather than alternative means of committing one crime, may the judge consult the charging document, the plea colloquy and the judgment to see which crime you were convicted of. Where the statute is indivisible, the judge compares its elements as a whole and the underlying facts are irrelevant.
Drug cases add a second question. Under Mellouli v. Lynch, 575 U.S. 798 (2015), a state drug conviction is a controlled-substance offense for immigration purposes only if the substance involved is on the federal schedules. A state statute that reaches substances the federal schedules do not list may not support the charge.
Who bears the burden, and what an inconclusive record means
On the charge, for a person who was admitted, DHS bears the burden of proving deportability by clear and convincing evidence under INA 240(c)(3)(A) and 8 C.F.R. 1240.8(a). If the record of conviction does not establish which crime you were convicted of under a divisible statute, the government has not met its burden.
On relief, the burden flips. Under 8 C.F.R. 1240.8(d) the applicant must establish eligibility, and in Pereida v. Wilkinson, 592 U.S. 224 (2021), the Supreme Court held that an applicant for relief bears the burden of showing that a conviction is not disqualifying and loses if the record is inconclusive. The same ambiguous record that defeats the government's charge can defeat your application for cancellation. This is why the strategy in a criminal case has to be decided before anything is conceded: the answer to "is this a crime involving moral turpitude" may be different depending on who has to prove it.
The certified record of conviction comes first
Before anything is admitted or denied at the master calendar, we obtain the certified record of conviction from the criminal court, for every arrest and not only the ones on the Notice to Appear, together with the text of the statute of conviction as it read on the date of the offense. The record decides whether there is a conviction under 101(a)(48), what the sentence was, and which subsection of a divisible statute you pleaded to. A plea to the wrong subsection, or a record that does not say, changes the case. Nothing on this page can be applied without it.
Three other things a conviction does
- It can stop the clock for cancellation. Under INA 240A(d)(1), continuous residence or physical presence ends when you commit an offense referred to in 212(a)(2) that renders you inadmissible under 212(a)(2) or removable under 237(a)(2) or (a)(4). It stops at commission, not conviction, under Matter of Perez, 22 I&N Dec. 689 (BIA 1999), and under Barton v. Barr, 590 U.S. 222 (2020), an offense that "renders" a permanent resident inadmissible stops time even though the resident is not seeking admission.
- It can mean mandatory detention. INA 236(c) requires detention without a bond hearing for the criminal and security grounds it lists, and the Laken Riley Act, Pub. L. 119-1 (Jan. 29, 2025), widened the list. Under Nielsen v. Preap, 586 U.S. 392 (2019), the mandate applies even if ICE did not take custody at the moment of release. Whether you fall within 236(c) is a legal question, and it is handled with our detention practice at icebail.com.
- It narrows court review. INA 242(a)(2)(C) strips the courts of appeals of jurisdiction over final orders against people removable on certain criminal grounds, but 242(a)(2)(D) preserves review of constitutional claims and questions of law, which under Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), includes applying a legal standard to established facts. Whether a conviction fits a ground is a question of law. A CAT order remains reviewable notwithstanding the criminal bar under Nasrallah v. Barr, 590 U.S. 573 (2020).
Where the analysis leads
If the conviction does not fit the ground, the answer is to contest removability and move to terminate. If it fits but was entered with a defect, the answer may be to vacate it in the criminal court, which is post-conviction relief. If it fits and stands, the question becomes which waiver or form of relief survives: the 212(h) waiver for a crime involving moral turpitude or a single small marijuana possession, former 212(c) relief for a permanent resident who pleaded guilty before April 1, 1997, or cancellation where the conviction is not disqualifying. Each of those pages assumes the analysis on this one has been done.
Read next: post-conviction relief, the 212(h) waiver, contesting removability, or cancellation for permanent residents.
Common questions
Does a suspended sentence count?
Yes. Under INA 101(a)(48)(B), the sentence is the one the court ordered, whether or not any part of it was suspended. A one-year sentence that was suspended in full is a one-year sentence for every ground that turns on sentence length, including the petty offense exception.
What is the petty offense exception?
Under INA 212(a)(2)(A)(ii)(II), a single crime involving moral turpitude does not make you inadmissible if the maximum possible penalty for the crime was one year or less and you were sentenced to six months or less. It applies to inadmissibility under 212(a)(2), not to the deportability grounds in 237(a)(2), and it applies to one offense only.
Why does the statute I was convicted under matter more than what happened?
Because of the categorical approach. Under Moncrieffe v. Holder, Descamps v. United States and Mathis v. United States, the immigration judge compares the elements of the offense of conviction to the federal definition and asks what the least serious conduct the statute punishes would be. If that minimum conduct does not fit the federal definition, the conviction is not a match, even if the police report describes something worse.
Who has to prove what the conviction is?
It depends on the question. If you were admitted and the government charges you as deportable, DHS must prove the ground by clear and convincing evidence under INA 240(c)(3)(A). If you are applying for relief and the question is whether a conviction disqualifies you, the burden is yours under 8 C.F.R. 1240.8(d), and under Pereida v. Wilkinson you lose if the record of conviction is inconclusive.
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You get a free case review with an attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will tell you what stage you are at, which forms of relief are open to you, what your deadlines are, and whether we can help. If we cannot, we will say so.