Not a U.S. citizen: how can a California criminal case affect your green card or visa?

California law requires defense counsel to give accurate, affirmative advice about the immigration consequences of a proposed plea, and requires prosecutors to consider avoiding those consequences in plea negotiations (Penal Code § 1016.3). Before any guilty or no contest plea, the judge must warn that a conviction may lead to deportation, exclusion or denial of naturalization (§ 1016.5). What a conviction means for your status is a question of federal immigration law: this office does not give immigration advice, and you need an immigration attorney.

For a green card holder, a student or worker on a visa, or someone with an application pending, a criminal charge raises two separate questions. The first is the criminal case: the charge, the evidence, the plea offers and the sentence, all in a California court. The second is what any outcome means under federal immigration law. This page covers what California's Penal Code says about the first question and how it connects to the second. It does not answer the second question, and nothing here is immigration advice. For the full list of criminal and family matters the office handles, see the practice areas.

The short version of California's approach is this: the state wants immigration consequences understood before a plea, not discovered years later. Four Penal Code sections carry that idea, and each one matters at a different point in the case.

How immigration rules work inside a California criminal case, step by step

1. Arrest and booking. An arrested person may make at least three completed phone calls, including one to an attorney that may not be monitored or recorded, and those rights are enforced regardless of immigration status (§ 851.5). The page on what to do in the first week after an arrest in Orange County covers the practical steps. The court process before the first hearing is explained on the page about what happens between arrest and arraignment.
2. Telling your defense attorney, not the court. No defendant is required to disclose immigration status to the court at the time of the plea (§ 1016.5(d)), and § 1016.3 does not change that (§ 1016.3(c)). Your defense attorney, on the other hand, needs to know, because the advice the law requires depends on it.
3. Advice from defense counsel. Defense counsel must provide accurate and affirmative advice about the immigration consequences of a proposed disposition and, when consistent with the client's goals and informed consent and with professional standards, defend against those consequences (§ 1016.3(a)). In practice, a criminal defense attorney who does not advise on immigration law works with the client's immigration attorney on this step.
4. Plea negotiations. The prosecution, in the interests of justice, must consider the avoidance of adverse immigration consequences as one factor in reaching a just resolution (§ 1016.3(b)). It is one factor, not a promise of any particular offer.
5. The court's advisement. Before accepting a guilty or no contest plea to any offense other than an infraction, the judge must read this warning on the record, word for word: a conviction may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under federal law (§ 1016.5(a)). On request, the court must give the defendant more time to consider the plea in light of that warning (§ 1016.5(b)).
6. Sentencing. An offense punishable by up to one year in county jail is now punishable by no more than 364 days, and that rule applies retroactively (§ 18.5(a)). A person sentenced to one year in county jail before January 1, 2015 may apply to the trial court to have the term changed to 364 days (§ 18.5(b)). Whether the difference matters for a particular person is a question for the immigration attorney.
7. After the case. If the court did not give the required advisement and the defendant shows that the conviction may have those consequences for them, the court, on the defendant's motion, must vacate the judgment and allow a not guilty plea; absent a record of the advisement, the law presumes it was not given (§ 1016.5(b)). A separate motion under § 1473.7 is available to a person no longer in criminal custody, explained on the page about undoing an old California conviction under Penal Code 1473.7.

Why California wrote these rules

Section 1016.2 records what the Legislature found when it added §§ 1016.2 and 1016.3 in 2015. It notes that in Padilla v. Kentucky the United States Supreme Court held that the Sixth Amendment requires defense counsel to give affirmative and competent advice to noncitizen defendants about the potential immigration consequences of their cases (§ 1016.2(a)). It says that for noncitizens, deportation is an integral part of the penalty for criminal convictions, and that it may result from serious offenses or a single minor offense (§ 1016.2(c)).

The findings go on to say that with an accurate understanding of the consequences, many noncitizen defendants are able to plead to a conviction and sentence that satisfy the prosecution and the court but carry no, or fewer, adverse immigration consequences than the original charge (§ 1016.2(d)). They also record that defendants who are misadvised or not advised often suffer irreparable damage to their status, and that in immigration proceedings there is no court-appointed right to counsel (§ 1016.2(e), (f)). The Legislature's stated intent is to codify Padilla and related California case law (§ 1016.2(h)).

The Orange County court's own guidance on obtaining an attorney makes the same point in plain words: a conviction can result in deportation for noncitizens or stop a legal resident from becoming a citizen.

What changes the answer?

• Whether a plea has been entered yet. Before a plea, the § 1016.3 duties shape the advice and the negotiation. After a plea, the questions turn to the § 1016.5 motion and § 1473.7.
• The type of offense. The § 1016.5 advisement applies to any offense punishable as a crime, but not to infractions (§ 1016.5(a)). Which offenses carry which immigration consequences is decided under federal law, not by these sections.
• The sentence. For offenses punishable by up to one year in county jail, the maximum is 364 days (§ 18.5(a)); older one-year sentences can be modified on application (§ 18.5(b)).
• The date of an old plea. For pleas before January 1, 1978, a missing advisement does not require vacating the judgment (§ 1016.5(c)). For pleas before January 1, 2026, failing to read the warning word for word does not by itself make the plea invalid under subdivision (b), though courts keep their discretion (§ 1016.5(e)).
• Whether the person is still in criminal custody. A § 1473.7 motion is for a person no longer in criminal custody (§ 1473.7(a)).
• The kind of case. Drug cases may involve diversion or deferred entry of judgment, explained on the drug charges page. Domestic violence cases can add a protective order, covered on the domestic violence charges page. Each one needs its own immigration analysis.

A worked example

For example, imagine a 27-year-old doctoral student from Iran living in Irvine on a student visa. This is a hypothetical, not a real case. After an argument at a party in Newport Beach, he is cited for a misdemeanor and given a date at the Harbor Justice Center. At the first hearing, the prosecutor offers a plea to a lesser misdemeanor with probation, and a friend tells him to take it so he can stop worrying and focus on his thesis.

He does not take it that day. He tells his defense attorney he is not a citizen and shows his visa documents; he does not have to tell the judge (§ 1016.5(d)). His defense attorney explains that California law requires accurate advice about the immigration consequences of any proposed plea (§ 1016.3(a)), that this office does not give immigration advice, and that he should consult an immigration attorney before deciding. He asks the court for more time, which the court must allow on request after the advisement (§ 1016.5(b)).

His immigration attorney reviews the proposed plea and tells him what it could mean for his visa and any future application. With that advice, his defense attorney goes back to the prosecutor and asks that immigration consequences be considered as one factor in the negotiation, as § 1016.3(b) requires. The decision about the plea stays his. If he also has a trip home planned for the summer, that raises a separate set of questions, covered on the page about travel outside the U.S. while a California case is open.

Common mistakes noncitizens make in a California criminal case

• Pleading at the first hearing to get it over with. A quick plea can be the hardest decision to undo. The court must give more time on request (§ 1016.5(b)).
• Treating a misdemeanor as harmless. The Legislature's own findings say deportation may result from a single minor offense (§ 1016.2(c)).
• Not telling the defense attorney about status. The advice § 1016.3 requires is impossible without it. The court does not need to know; your attorney does.
• Treating the judge's warning as advice. The § 1016.5 advisement is a general warning read to everyone. It does not say what will happen to you.
• Assuming a later dismissal or record cleanup solves the immigration question. A dismissal under Penal Code 1203.4 has its own rules; ask an immigration attorney what it does and does not change for you before relying on it.
• Waiting years to look at an old conviction. Some motions have timing rules tied to immigration notices (§ 1473.7(b)); look at the record as soon as a problem appears.

What to do this week

1. Tell your defense attorney your immigration status and bring your documents: green card, visa, any pending application or notice.
2. Contact an immigration attorney before any plea, and give your defense attorney permission to speak with them.
3. Write down every court date and attend; do not plead at a hearing until you have both opinions.
4. If you are offered a plea, ask your defense attorney to put it in writing so your immigration attorney can review the exact charge and sentence.
5. If you have an old California conviction, order the court file, including the plea form and minutes, to see what advisement was given.
6. Hold off on international travel until you have spoken with both attorneys.

If you want to know who would be handling the criminal side of your case, and in which languages, read about Sourena Sarbazevatan.

Frequently asked questions

Do I have to tell the judge I am not a U.S. citizen?

No. California law says no defendant shall be required to disclose their legal status to the court at the time of the plea (§ 1016.5(d)). Tell your defense attorney instead.

What exactly does the judge say before a plea?

The judge reads, word for word, that if you are not a citizen, a conviction of the offense charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under federal law (§ 1016.5(a)).

What if the judge never gave that warning in my old case?

If the court failed to advise you and you show that the conviction may have those consequences for you, the court, on your motion, must vacate the judgment and let you plead not guilty; without a record of the advisement, the law presumes it was not given (§ 1016.5(b)). Older pleas have special date rules (§ 1016.5(c), (e)).

Does the prosecutor have to agree to an immigration-safe plea?

No. The prosecution must consider avoiding adverse immigration consequences as one factor in the plea negotiation (§ 1016.3(b)). It does not have to accept any particular offer.

Why do people talk about 364 days?

Because California capped the county jail term for offenses punishable by up to one year at 364 days, retroactively (§ 18.5(a)). What that means for immigration purposes is a federal question for an immigration attorney.

Can this office tell me whether I will be deported or lose my visa?

No. This office handles the California criminal case and does not give immigration advice. An immigration attorney can answer that question.

Can an old conviction be undone if it now causes immigration problems?

Possibly. A person no longer in criminal custody can move to vacate a conviction under § 1473.7 on the grounds that section lists, including prejudicial error about immigration consequences.

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in criminal defense matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.