If you are not a U.S. citizen, get a case-specific immigration analysis before deciding whether to accept a proposed criminal plea. The exact offense, subsection, admitted facts, sentence, and your immigration history may matter. California law requires defense counsel to give accurate, affirmative advice about immigration consequences of a proposed disposition; the law does not guarantee that an alternative plea without adverse consequences is available. (Penal Code § 1016.3; Padilla v. Kentucky)

What counsel needs to examine before the plea

Ask your criminal lawyer for the written offer, the proposed charge and precise statute or subsection, any factual admissions or plea form, and the proposed sentence or conditions. Tell counsel your current immigration status, prior criminal and immigration history, and whether you have a pending application or a plan to travel or seek citizenship. An immigration lawyer can then evaluate the offer against the federal rules that actually apply to you. A charge nickname or promise that the case will later be “dismissed” is not enough to classify the outcome.

Federal law can count a disposition as a conviction even when a state court withholds a formal judgment, if there is a qualifying guilty or no-contest plea, finding, or admission of sufficient facts and the judge imposes a punishment, penalty, or restraint on liberty. This is one reason to examine the proposed sequence of plea, diversion, probation, and dismissal before accepting it. It does not mean every diversion program creates a federal conviction; the actual record and program matter. (8 U.S.C. § 1101(a)(48)(A))

In Padilla v. Kentucky, the U.S. Supreme Court held that defense counsel must advise a noncitizen client about deportation risk before a plea. When the deportation consequence is clear, advice must be correct; when immigration law is not straightforward, counsel must at least advise that the pending charges may carry adverse immigration consequences. California Penal Code § 1016.3 requires accurate and affirmative advice about a proposed disposition and directs the prosecution to consider avoiding adverse immigration consequences as one factor in reaching a just resolution. The prosecutor’s duty to consider that factor is not a promise to offer a particular charge. (Padilla v. Kentucky; Penal Code § 1016.3)

If an offer changes, ask for the immigration analysis to be updated before entering the revised plea. A different subsection, admitted fact, or sentence can change the question being analyzed. Tell counsel promptly if a plea hearing is set soon; the review may require court records and immigration documents that take time to gather. No lawyer can promise that a plea will preserve a visa, prevent removal, or secure a future immigration benefit, because those decisions depend on federal law and the person’s full history.

The Law Offices of David S. Chesley’s immigration and criminal-case overview gives broader context. For help reviewing a proposed California criminal disposition, call (800) 755-5174.