Public Service Announcement – If You Have Temporary Protected Status, Don’t Plead Guilty to Those Minor Misdemeanors

If you are an immigrant here in the US with temporary protected status (TPS), you will lose this status if you are convicted of two misdemeanors.  INA §244(c)(2)(B).  And even if you have been in the US a long time and have US citizen children, you will not be allowed to stay unless your citizen (or LPR) children (or spouse or parents) would suffer “extreme and exceptionally unusual hardship.” This form of relief is called “non-LPR cancellation of removal,” and is extremely difficult to qualify for.

Often for the first offense of something like DUI, defense lawyers will advise clients to take a deal for an “alternate disposition” not resulting in any jailtime.  For example, in Maryland we have a disposition called “probation before judgment” (PBJ), which is not considered a conviction under state law.  Md. Crim. Proc. §6-220(g)(3).  The only problem is that in the immigration context, conviction is defined by federal law, not state law.  INA §101(a)(48).  Under federal law, a conviction includes some finding or admission of guilt or facts and “some form of punishment,” including a suspended sentence and/or fine.  US v. Zamudio, 314 F. 3d 517, 522 (10th Cir. 2002).  To avoid a conviction, you would have to avoid imposition of any suspended sentence or fine.  So even though the defense lawyer tells you that you are getting off relatively scott-free, with some vague warning of immigration consequences, those immigration consequences need to be considered carefully.  If you have TPS, you can’t get a  second conviction for anything.