For a non-citizen facing criminal charges in Tennessee, a criminal case is rarely just a criminal case. A guilty plea that a U.S. citizen could absorb as a manageable consequence may, for a lawful permanent resident, a visa holder, a DACA recipient, or an undocumented person, become the basis for removal from the United States, a bar to re-entry, or the destruction of a pending immigration application. In Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court recognized this reality and held that criminal defense lawyers have a constitutional duty to advise non-citizen clients about the immigration consequences of a plea.
At Brooks Law Firm, we approach every case involving a non-citizen with that reality in front of us from the first meeting. The goal is not simply the best criminal disposition. It is the best disposition that also protects the client’s ability to remain in this country, keep working, and stay with family.
What This Practice Covers
We are Tennessee criminal defense attorneys. Our work for non-citizen clients includes:
- Defense in state and federal criminal cases in Tennessee, including misdemeanor and felony charges, DUI, domestic assault, drug offenses, theft and fraud, weapons offenses, and serious violent crimes.
- Analysis of how each charge and each possible plea would affect immigration status, with attention to the specific immigration posture of the client — lawful permanent resident, nonimmigrant visa holder, asylee or refugee, DACA recipient, applicant for adjustment of status, undocumented, or otherwise.
- Negotiation of pleas, sentences, and diversion that are structured, where the facts and the prosecutor allow, to minimize or avoid immigration consequences.
- Coordination with immigration counsel when removal proceedings are pending or anticipated, and during the resolution of the criminal case.
- Counsel on whether to fight a case to trial, accept a particular resolution, or pursue an alternative disposition.
- Post-conviction work, including petitions to vacate convictions entered without the immigration advice required by Padilla.
For removal proceedings before an Immigration Judge, asylum applications, adjustment of status, naturalization, family petitions, and similar matters before USCIS, EOIR, or ICE, we work alongside or refer to qualified immigration counsel. The criminal case, however, is frequently where the immigration outcome is decided — and the criminal case is what we do.
Why the Stakes Are Different for a Non-Citizen
Federal immigration law treats certain categories of criminal conduct as grounds for removal under the Immigration and Nationality Act. The labels Congress chose do not match the labels in the Tennessee criminal code. A Tennessee misdemeanor can be an “aggravated felony” for immigration purposes. A Tennessee felony can sometimes be resolved in a way that avoids that label. The same offense, on the same facts, can result in mandatory detention and removal for one client and have no immigration consequence for another, depending entirely on how the case is charged, pleaded, and sentenced.
The categories below are the most common drivers of removal in this office’s caseload. The descriptions are general — whether any particular Tennessee statute falls within them is a technical question that requires case-specific analysis.
Aggravated Felonies
“Aggravated felony” is a term of art in immigration law defined at INA § 101(a)(43). It is not a category in the Tennessee Code. It includes drug trafficking, certain theft and burglary offenses with a sentence of one year or more, certain crimes of violence with a sentence of one year or more, sexual abuse of a minor, certain firearms offenses, money laundering above statutory thresholds, and a long list of other offenses. An aggravated felony conviction generally produces mandatory immigration detention, removal with very limited relief available, and a permanent bar to lawful re-entry. The one-year sentencing line is critical: a 365-day sentence and a 364-day sentence can produce entirely different immigration outcomes from the same plea to the same charge.
Crimes Involving Moral Turpitude (CIMT)
Theft, fraud, many assault offenses, and any offense involving an intent to deceive or to harm are commonly classified as crimes involving moral turpitude. The thresholds matter: a single CIMT committed within five years of admission to the United States, where the offense carries a possible sentence of one year or more, can make a non-citizen deportable. Two CIMTs at any time, not arising from a single scheme, are separately deportable.
Controlled Substance Offenses
Almost any drug conviction other than a single offense of simple possession of 30 grams or less of marijuana renders a non-citizen deportable under federal law. Even a single simple-possession conviction can render a person inadmissible and bar adjustment of status or naturalization. Drug paraphernalia convictions, possession with intent, sale, and trafficking each carry their own consequences, and trafficking is typically an aggravated felony.
Crimes of Domestic Violence, Stalking, Child Abuse, and Violations of Protective Orders
A conviction for any of these categories — or a judicial finding that a person violated the protective portion of an order of protection — is a deportable offense under INA § 237(a)(2)(E). A Tennessee domestic assault charge, even a Class A misdemeanor, has to be analyzed with this in mind from the outset.
Firearms Offenses
A conviction for any firearm offense is a deportable offense for a non-citizen under INA § 237(a)(2)(C). This category is broad and reaches many Tennessee weapons charges.
Crimes of Violence
Certain assaults, robbery offenses, and similar Tennessee charges may qualify as “crimes of violence” under federal definitions. Whether a specific Tennessee offense qualifies turns on a technical “categorical approach” analysis of the statute’s elements, not on the underlying facts of the case.
DUI
A standard, single Tennessee DUI is generally not a deportable offense and is generally not a CIMT on its own. That is not the same as saying a DUI is safe for a non-citizen. Aggravated DUI, DUI with a child in the vehicle, vehicular assault, vehicular homicide, and patterns of repeat DUIs can each trigger separate immigration grounds. A DUI also affects discretionary relief, naturalization eligibility (good moral character), and bond in immigration custody.
Fraud and Theft Offenses
Theft and fraud are typically CIMTs. With a sentence of one year or more they can become aggravated felonies. Fraud against the government, identity theft, and financial crimes carry both criminal exposure and serious immigration risk.
Why Plea Negotiation Matters So Much
In Tennessee, most criminal cases resolve through plea, diversion, or dismissal — not trial. For a non-citizen, the difference between two pleas that look almost identical on a criminal record can be the difference between remaining in the United States and being removed. The same is true for sentencing.
The levers that matter most in plea negotiation:
- The charge of conviction. Whether the plea is to the originally charged offense or to a different one that does not fit a removal ground. The choice of statute, even within the same general subject area, can be decisive.
- The sentence imposed. The 365-day rule for aggravated felonies. Splits between time served, suspended sentence, and probation can matter.
- The factual basis stated at the plea hearing. What the client stipulates to on the record follows the client into immigration court. Immigration adjudicators look at the record of conviction.
- Pre-trial diversion under T.C.A. § 40-15-105 and judicial diversion under T.C.A. § 40-35-313. Neither is a guaranteed immigration safe harbor under federal law. Their structure, however, and the way the case is resolved at the end of the diversion period, can make a meaningful difference in some circumstances and are worth pursuing where eligible.
- Reduction to a lesser offense, dismissal at the end of probation, or expungement. Expungement under Tennessee law generally does not erase a conviction for federal immigration purposes — one of the most common and most dangerous misconceptions, addressed further below.
- Whether to go to trial. Sometimes the only acceptable outcome is acquittal, and the case has to be tried.
Tell Your Lawyer Your Immigration Status
This is a difficult message, but it is the most important one on this page. If we do not know that a client is a non-citizen, we cannot protect that client’s immigration status. Citizenship, current immigration status, pending applications, prior immigration history, prior orders of removal, and prior contact with ICE are all information we need from the first meeting. Everything shared with the firm is protected by the attorney-client privilege.
After a Conviction: Padilla Relief and Post-Conviction Work
If a non-citizen entered a plea in a Tennessee court without being properly advised of the immigration consequences — or was affirmatively misadvised — that conviction may be vulnerable to post-conviction attack under Padilla v. Kentucky. Deadlines under Tennessee’s post-conviction statute are strict, and the showing required is technical, but a successful petition can vacate the conviction and remove it as a basis for removal. We handle these petitions. If you or a family member previously pleaded to a charge without being told what it would mean for immigration status, it is worth a consultation.
Common Misconceptions
- “Expungement clears it for immigration.” It does not. Federal immigration law has its own definition of “conviction” (8 U.S.C. § 1101(a)(48)(A)) that is independent of state expungement statutes. A Tennessee expungement may help in employment and other collateral contexts but generally does not undo immigration consequences.
- “The charge was dismissed, so there are no immigration consequences.” Sometimes true, sometimes not. A dismissal that follows a plea-and-probation arrangement — including judicial diversion — can still be a “conviction” for immigration purposes under the federal definition.
- “I’m a green card holder, so I can’t be deported for a misdemeanor.” A lawful permanent resident can be deported for many misdemeanors, including domestic assault, most drug offenses, certain thefts, and any firearm offense.
- “My DUI is fine for immigration.” A single ordinary DUI is generally not a removal trigger, but multiple DUIs, aggravated DUI, and any DUI during a pending immigration application carry real risk to status and to discretionary relief.
- “I’ll just plead it out today and worry about immigration later.” By the time immigration consequences arrive, the criminal plea is usually final. The window to protect immigration status is before the plea is entered, not after.
If You or a Family Member Has Been Arrested
- Do not give a statement to police, ICE, or any federal agent without a lawyer present.
- Do not sign anything described as “voluntary departure,” a stipulated removal, or any document waiving rights.
- If detained, ask for a lawyer and remain silent beyond identifying information.
- Call the firm.
Contact the Firm
Brooks Law Firm
2299 Union Avenue
Memphis, Tennessee 38104
Phone: (901) 324-5000
Email: patrick@patrickbrookslaw.com
Consultations are confidential. Please do not include detailed case facts in an initial email; we will arrange a private call or meeting.
This page provides general information about Tennessee criminal defense for non-citizens and the immigration consequences of criminal convictions. It is not legal advice and does not create an attorney-client relationship. Immigration law is federal, fact-specific, and changes frequently. Whether any particular Tennessee statute or plea will produce a particular immigration consequence depends on the client’s individual immigration history, the elements of the offense, the record of conviction, and the sentence imposed. Anyone facing criminal charges who is not a U.S. citizen, or who has family members who are not U.S. citizens, should consult with a qualified criminal defense attorney and, where appropriate, with immigration counsel before entering any plea or making any statement.