Can the prosecutor consider immigration consequences in my case?

This is general information, not legal advice. Every case and every prosecutor's office is different. Your defense lawyer is the person who talks to the prosecutor for you.

Is the prosecutor allowed to think about deportation?

Yes, and in California they are required to.

Penal Code 1016.3(b) says the prosecution, in the interests of justice, shall consider the avoidance of adverse immigration consequences in the plea negotiation process, as one factor in reaching a just result. This has been the law since January 1, 2016.

The Legislature explained why in Penal Code 1016.2. It relied on the U.S. Supreme Court's decision in Padilla v. Kentucky, and said that informed consideration of deportation can only benefit both the state and the defendant. In Padilla, the Court noted that bringing deportation into plea talks can help both sides reach agreements that serve their interests.

Does that mean the DA must give me a deal?

No. Be clear about this.

• It is "one factor." The prosecutor also weighs the facts, the harm to any victim, your record, and public safety.
• The prosecutor still decides what to offer. No law forces a specific plea.
• The judge still has a role. The judge must give you the immigration warning before any guilty or no contest plea, and must give you more time to think if you ask, under Penal Code 1016.5.

But the duty is real. A prosecutor who refuses to even consider immigration effects is not following California law. Your lawyer can say so, respectfully.

What does an "immigration safe" plea look like?

There is no single safe plea. It depends on your status and your goals. A lawyer who knows immigration law can look for options like these:

• A different code section. Two laws can punish the same conduct, but only one may count as a crime involving moral turpitude, a drug offense or an aggravated felony. See What is a crime involving moral turpitude?
• A shorter sentence. Many immigration rules turn on a sentence of 1 year or more, even if suspended. A California misdemeanor tops out at 364 days, under Penal Code 18.5. See Why the length of a sentence matters.
• A lower loss amount. For fraud or theft by deceit, a loss over $10,000 can make it an aggravated felony, under 8 U.S.C. 1101(a)(43)(M). The amount in the plea and restitution order matters.
• The drug "public nuisance" plea. Since January 1, 2023, a negotiated plea can be to public nuisance under Penal Code 372.5, with the drug charges dismissed. See A drug charge option that protects immigrants.
• Diversion. Some programs end in dismissal. Some require no guilty plea. A judge can grant misdemeanor diversion even over the prosecutor's objection, under Penal Code 1001.95. See Is a diversion program safe if I am not a citizen?
• A careful record. What the plea form and police report say about the facts can matter. Your lawyer can ask that the record not include extra facts.

What helps one person can hurt another. A green card holder, a person with DACA, and a person with no papers may each need a different plea. Your lawyer should check with an immigration expert.

How does my lawyer ask the DA?

Usually in plea talks, often with a short written request. Good requests are concrete. They often include:

1. The specific harm. For example: "A plea to this section is a deportable offense for our client. A plea to that section is not."
2. The proposed alternative. The exact code section and sentence that would avoid the harm, while still holding the person accountable.
3. Who you are. Your family, children, work, school, faith or community ties, health, and how long you have lived here.
4. Proof. Letters of support, pay stubs, school records, proof of treatment or classes.

The California law says the request is about a just result, not a free pass. A proposal that still includes real accountability, like classes, community service or restitution, is easier for a prosecutor to accept.

Do district attorney offices have their own policies?

Some do. For example, the Santa Clara County District Attorney issued a memo to prosecutors on September 14, 2011. It said that when collateral consequences, including immigration effects, are much greater than the punishment for the crime itself, prosecutors should consider them and may take reasonable steps to lessen them. That memo is from 2011, and we did not find it on the District Attorney's own website as of October 21, 2026. Ask your defense lawyer whether the office still follows it.

The Alameda County District Attorney has posted a written immigration consequences policy, updated March 26, 2020.

We did not find a public written policy from the San Mateo County District Attorney as of October 21, 2026. That does not change the state law duty, which applies to every prosecutor in California.

Do I have to tell the court or the DA my immigration status?

No. You don't have to tell the court your status when you plead, under Penal Code 1016.5(d). Tell your defense lawyer, privately. Your lawyer decides with you whether and how to raise immigration effects with the prosecutor.

Also, in a California criminal case, a person's immigration status can't be brought up in open court unless the judge first decides, in a private hearing, that it is relevant, under Evidence Code 351.4.

What if my lawyer never asked?

Your defense lawyer has their own duty. California law requires accurate and affirmative advice about immigration effects and, if you want it, efforts to defend against them, under Penal Code 1016.3(a).

If you already pleaded and no one tried, ask an immigration lawyer about a motion to vacate under Penal Code 1473.7. It can be filed once you are out of criminal custody, but you must act with reasonable diligence once you get a notice to appear or a removal order. See Ways to fix an old California conviction.

What does this look like in real life?

Example (fictional). Tomás has a green card and is charged with felony theft. The first offer is a felony plea with 16 months. That could be an aggravated felony. His public defender sends the prosecutor a two page request: a plea to misdemeanor theft, 364 days with most of it suspended, restitution, and a theft class, plus letters from his employer and church. The prosecutor accepts a version of it. Tomás still has a conviction, but he has avoided the aggravated felony label.

Questions people ask

Can I talk to the DA myself? If you have a lawyer, let your lawyer do it. Anything you say to a prosecutor can be used against you.

Will asking for an immigration safe plea make the DA think I'm guilty? No. Plea talks happen in almost every case. Asking for a fair result that avoids deportation is normal and allowed by law.

Does this work in federal court? This page is about California state cases. Federal prosecutors follow federal rules and policies.

What if the DA says no? Your lawyer may go back with a different proposal, ask the judge for an indicated sentence, or prepare for trial. Ask what each choice means for your immigration case before you decide.

Who can help?

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

• Your defense lawyer or public defender is your first call. For Santa Clara County cases, the Public Defender's main line is (408) 299-7700. San Mateo County has no public defender office; for San Mateo County cases, the court appoints the Private Defender Program, (650) 298-4000.
• Anywhere in California: the California Department of Social Services provider map, or call (916) 651-8017, to find immigration legal help.
• San Mateo and Santa Clara county residents with low income: Community Legal Services in East Palo Alto (CLSEPA), (650) 326-6440.
• Anywhere in the U.S.: search ImmigrationLawHelp.org by zip code.
• More help: California laws that protect immigrants in criminal cases and Arrests, records and immigration: the complete guide

You have the right to a fair deal that takes your whole life into account. Ask for it, through your lawyer, before you plead.