What counts as a conviction for immigration?

This page is general information, not legal advice. Whether your case is a conviction depends on your exact papers. Have an immigration attorney or a DOJ accredited representative read them.

Why does the word "conviction" matter so much?

Most criminal problems in immigration law need a conviction. If you don't have one, many doors stay open. If you do, it can make you deportable, block a green card or citizenship, or end your chance at some kinds of relief.

The hard part: immigration uses its own federal definition. A case California treats as closed, dismissed or erased can still be a conviction for immigration. And a few cases California calls convictions may not count, because of how they ended. That is why "my lawyer said it was dismissed" is not the end of the story.

For the bigger picture, see How a criminal record can affect your immigration status. For the legal words on this page, see Words to know when a criminal case touches immigration.

What is the federal definition?

Federal law (8 U.S.C. 1101(a)(48)(A)) and the USCIS Policy Manual say there is a conviction in either of two cases:

1. A court entered a formal judgment of guilt. This is the plain kind of conviction.
2. The court withheld judgment, but two things happened. First, a judge or jury found you guilty, or you pleaded guilty or no contest, or you admitted enough facts to support guilt. Second, the judge ordered some form of punishment, penalty or restraint on your freedom. The law says "some form," so it does not have to be jail. Ask your lawyer whether what your judge ordered counts.

If both parts are there, immigration usually treats it as a conviction, even if the state later dismisses the case.

If my case was expunged, is it gone?

Not for immigration. USCIS says an expunged record does not remove the underlying conviction. That includes a California dismissal under Penal Code 1203.4, which many people call an expungement. California Courts also says true expungement does not exist in California.

The same is true when a case was dismissed only because you finished probation or a rehabilitation program. Immigration still sees the conviction.

What this means for you:

• Tell the truth on immigration forms. The citizenship form instructions say to report all offenses, including ones that were expunged and ones from before age 18. Leaving one out can lead to a denial.
• You still need the papers. USCIS says it is your job to get your records, even if they were sealed or expunged.
• Clearing your record may still help in other parts of your life. Just don't count on it for immigration. See Does clearing my record in California help my immigration case?

For DACA the rule is softer. The DACA rule says expunged convictions are not automatically disqualifying. See Can I get or keep DACA if I have been arrested?

What if the court vacated my conviction?

This is the kind of fix that works. USCIS says a judgment vacated for cause because of a constitutional defect, a statutory defect, or an error affecting guilt is not a conviction for immigration.

That includes a conviction vacated because the court did not warn you about immigration consequences before your plea.

But the reason matters. If a court vacated the case only to help you avoid immigration problems, or because you finished a program, immigration still counts it. The court order should say clearly that the conviction was vacated because of a legal error.

In California, the main tool is Penal Code 1473.7. It lets someone no longer in criminal custody ask the court to cancel a conviction, for example because they did not understand the immigration consequences of the plea. See How to ask a court to cancel an old conviction under Penal Code 1473.7.

What about diversion or deferred entry of judgment?

It depends on whether you had to plead guilty.

• Diversion with no guilty plea. USCIS says that when someone is sent to a pretrial diversion program and no admission or finding of guilt is required, the order may not count as a conviction. California's drug diversion under Penal Code 1000 has been pretrial since 2018: the person pleads not guilty, and the charges are dismissed after the program is finished. That fits the USCIS description on its face, but ask your lawyer to check your papers, especially if you admitted anything in writing.
• Programs where you pleaded guilty first. If you pleaded guilty or no contest and the case was dismissed later, that can still be a conviction for immigration, because the plea and the program can meet both parts of the definition.
• Old California deferred entry of judgment (DEJ). Many people pleaded guilty to a drug charge under DEJ and later had the case dismissed. California Penal Code 1203.43 says that for DEJ granted on or after January 1, 1997 and completed, the plea was legally invalid, and the court must let you withdraw it and dismiss the case. See Clearing an old drug diversion plea with Penal Code 1203.43.
• Prop 36 "treatment mandated felony." Under California's 2024 Prop 36, some drug cases require a plea and treatment. Finishing treatment leads to a dismissal that is not a conviction under state law. The Immigrant Legal Resource Center warns that the plea itself may still cause serious immigration harm. See What Prop 36 means for immigrants.

What about juvenile court?

USCIS says a guilty finding in juvenile court is generally not a conviction for immigration. But if you were under 18 and were charged as an adult, an adult court conviction counts.

Even without a conviction, a juvenile case can still come up. The citizenship form instructions ask you to report offenses from before age 18. Be honest on forms and ask your lawyer how to answer. See Does a juvenile record affect immigration or DACA?

Is an infraction a conviction?

Maybe not, but get it checked. An infraction is California's lowest level of offense, like many traffic tickets. In Matter of Eslamizar (2004), the immigration appeals board held that an Oregon "violation," decided without the protections of a real criminal trial, is not a conviction for immigration. Some immigration lawyers argue the same reasoning covers California infractions. No official ruling says that about California infractions, so ask your lawyer to check yours.

Some facts we did confirm:

• DACA. USCIS says minor traffic offenses do not count against DACA. A DUI does count, even as a misdemeanor.
• Citizenship. The N-400 instructions ask for traffic records only if the incident involved alcohol or drugs, an arrest, or a serious injury.

What if my case is on appeal?

Ask your lawyer before you assume anything. In Matter of J.M. Acosta (2018), the immigration appeals board said a conviction is not final for immigration until your direct appeal on the merits is finished or given up. Once the time to appeal has passed, the government can presume the conviction is final. You can answer that with proof you filed the appeal on time and that it is about guilt or a real defect in the case. An appeal only about the sentence, or a later collateral attack, does not stop the conviction from counting. Federal appeals courts have not all agreed on this. Acosta itself discusses the disagreement, including the Ninth Circuit's 2011 decision in Planes v. Holder, and the Ninth Circuit covers California. Your lawyer needs to check the rule where your immigration case is heard. Keep a copy of your notice of appeal and every appeal decision.

Can I be in trouble without any conviction?

Yes. Some immigration problems need no conviction at all:

• Admitting a crime. You can be found inadmissible for admitting the elements of a crime involving moral turpitude or a drug crime, even with no arrest or charge. USCIS says an officer must first show you the law, explain it in plain words, and take your admission under oath.
• "Reason to believe" drug trafficking. The government can block a green card if it has reason to believe you trafficked drugs.
• Drug abuse or addiction. A medical finding that you are a drug abuser or addict is its own problem. See Is it safe to get help for drug or alcohol use?
• Arrests alone. Under the Laken Riley Act, some people without lawful entry can be held by ICE without bond just for being arrested for or charged with theft, shoplifting, burglary and some other crimes. See How a criminal record can affect your immigration status.

What should I do now?

1. Get every paper. Court records for each case, your California DOJ record, and your FBI record. See How to get a copy of your criminal record.
2. Don't travel or file yet. Wait until an expert has read your papers.
3. Bring the checklist below to a free or low cost legal clinic.
4. Ask about fixes. If a case counts, there may be a way to reopen it. See Ways to fix an old California conviction.

You are not your worst day in court. Many cases can be checked, and some can be fixed.

Who can help?

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Community Legal Services in East Palo Alto (CLSEPA): 650-326-6440. Removal defense and record clearance for people with low income in San Mateo and Santa Clara counties. Walk in at 1861 Bay Road, East Palo Alto, Monday to Friday, 9 a.m. to 1 p.m.
• Santa Clara County Public Defender: (408) 299-7700, 120 West Mission Street, San Jose, for open cases. Its Reentry Expungement Program is at (408) 535-4290.
• San Mateo County Private Defender Program: (650) 298-4000. San Mateo County has no public defender office; this program handles court appointed defense.
• More help: Free or low cost immigration legal help in the Bay Area. Before you pay anyone, read How to find a lawyer you can trust.

Is there a checklist I can print?