If You Are Not a U.S. Citizen and Facing Criminal Charges in Virginia, Immigration Consequences Must Be Addressed

Jennifer Gebler

A criminal charge does not only carry criminal consequences.

For non-citizens, even minor offenses can trigger detention by immigration authorities, removal proceedings, loss of lawful status, or permanent inadmissibility.

The United States Supreme Court made this clear in Padilla v. Kentucky, 559 U.S. 356 (2010), holding that criminal defense attorneys must advise non-citizen clients about the immigration consequences of a guilty plea.

Immigration consequences are not “collateral.” They are often the most severe consequence a client faces.

What Padilla v. Kentucky Requires

In Padilla, the Supreme Court held that failure to advise a client about clear immigration consequences can constitute ineffective assistance of counsel under the Sixth Amendment.

If the immigration consequence of a plea is clear — such as deportation for certain drug offenses — the attorney must advise the client accordingly.

If the consequences are less clear, the attorney must still advise that the plea carries potential immigration risk.

In short:

Criminal defense attorneys cannot ignore immigration status.

Why Criminal and Immigration Counsel Should Work Together

Immigration law is complex, technical, and constantly evolving. Seemingly minor distinctions in criminal charges can dramatically alter immigration outcomes.

For example:

  • A plea to one statute subsection may trigger mandatory removal.
  • A different subsection may preserve eligibility for relief.
  • A short suspended sentence versus an active sentence can matter.
  • Admissions made in court can later be used in immigration proceedings.

Because of this complexity, best practice often requires coordination with an experienced immigration attorney who can analyze:

  • Deportability grounds
  • Inadmissibility consequences
  • Eligibility for asylum or other relief
  • Availability of voluntary departure
  • Risk of mandatory detention

The criminal case and the immigration case are not separate worlds. They intersect directly.

Increased Immigration Enforcement in Virginia Jails

Recent guidance circulated among public defenders highlights increased activity by Homeland Security Investigations (HSI) in local jails. According to the Virginia Indigent Defense Commission’s May 2, 2025 communication, HSI officers have:

  • Met with detained non-citizens while they are in criminal custody
  • Obtained signatures on removal documents
  • Secured waivers of immigration hearings
  • Engaged individuals without notifying appointed criminal defense counsel

The communication emphasizes that some clients may not fully understand what they are signing, particularly where language barriers exist.

It also notes Fifth Amendment concerns, as admissions made during interviews can later be used in federal prosecutions under 8 U.S.C. §§ 1325 and 1326.

These developments reinforce one essential principle:

Non-citizen defendants must be advised not to speak with immigration authorities without counsel present.

“Self-Deportation” and Misinformation

The same advisory warns that so-called “self-deportation” campaigns are not formal legal processes and may carry severe immigration consequences.

Leaving the United States without proper legal advice can:

  • Bar re-entry
  • Eliminate eligibility for certain relief
  • Waive rights to alternative remedies

Immigration decisions made during a criminal case should never occur without legal consultation.

Protecting Your Future

For non-citizens, the true risk in a criminal case may not be jail time. It may be:

  • Removal from the United States
  • Permanent separation from family
  • Loss of lawful status
  • Ineligibility for naturalization

Every plea offer must be evaluated through both a criminal and immigration lens.

At Inman & Strickler, we recognize that immigration consequences are central — not secondary — for many clients. If you have concerns about immigration issues, we will help you navigate those concerns.

The goal is not simply to resolve the criminal charge.
The goal is to protect our client’s future.