You are not a citizen, and you have been arrested, or someone you love has. On top of every fear a citizen would have – jail, charges, a record – you are carrying one more: what does this do to the visa, the green card, the pending application, the life you’ve built here. You may already sense the truth, which is that for you, the criminal case and the immigration case are one case and that what happens in your criminal case will determine whether you can stay in this country.
This article is the guide for that moment. Everything in our general article on what to do when arrested applies to you fully, the silence, the searches, the jail calls. This article covers what is different for a non-citizen: how immigration authorities learn about your arrest, the special traps that exist only for you, and the exits from the criminal system that look best are, for you, frequently mislabeled.
Non-Citizen Arrested: The Short Answer
Follow the universal rules first: say nothing to police about what happened, do not consent to searches, ask clearly for a lawyer, and treat every jail call as recorded. Then add the rules that exist only for non-citizens. Do not discuss your immigration status with police, and never, under any circumstances, claim to be a United States citizen, a lie that can have negative consequences. Do not sign anything presented by immigration officers without a lawyer. Tell your own attorney your complete immigration situation immediately, because that conversation is privileged and your defense cannot be built without it. Do not rush to accept the quick plea that gets you out of jail fastest, because under federal law a plea is a conviction even if the case is later dismissed, and the fast exit can be the one that ends your life in this country.
At Vijay Law we have represented people accused of crimes from dozens of countries, from every continent except Antarctica, and the pattern across all of them is the same: the non-citizens who protect their futures successfully are the ones who treated the criminal case as an immigration case from the first hour.
How Immigration Authorities Learn About Your Arrest
Start with a fact that surprises almost everyone: no one has to report your arrest to immigration authorities, because the system reports it automatically.
When you are booked, your fingerprints are taken, and those prints are transmitted to federal databases shared between the FBI and the Department of Homeland Security.
Immigration authorities can learn of the arrest of a non-citizen this way regardless of what you say, what the police suspect, or whether anyone “calls ICE.” Silence about your status protects you in other ways, but it does not keep the arrest invisible. Therefore you should assume the arrest is known.
What happens next depends significantly on where you are. California law limits state and local cooperation with federal immigration enforcement: under the California Values Act, local law enforcement is generally restricted from holding people on immigration detainers, notifying immigration authorities of release dates, or transferring people to immigration custody, except for individuals with certain serious criminal histories, and some counties, including in the Bay Area, follow policies stricter still. While these protections are real, they are not absolute and not a substitute for handling the case correctly, because immigration consequences flow above all from the outcome of the criminal case itself, which no sanctuary policy touches.
If immigration officers contact you in jail: you have the right to remain silent with them as with police, and the right not to sign anything. Papers presented in custody can include documents that waive your rights or agree to your own removal, sometimes described in reassuring terms. Sign nothing without counsel. Nothing presented in a jail requires an immediate signature.
The Mislabeled Exits: Why The Fast Way Out Is Your Trap
The criminal system is built to reward speed. Courts are crowded and the machinery offers quick exits everywhere: plead at arraignment and go home tonight, take the misdemeanor with credit for time served, accept the standard offer and be done by Friday. For a citizen, those fast exits are often sometimes good deals, the least punishment, the shortest disruption, the quickest return to normal life. The system labels them “best outcome,” and for citizens the label is frequently accurate.
For you, the labels are wrong, and the reason is a single provision of federal law. Under the Immigration and Nationality Act, a “conviction” includes any case where you entered a plea of guilty or no contest and any penalty or restraint was imposed, and it remains a conviction for immigration purposes even if the criminal court later dismisses the case, reduces it, or expunges it.
The plea is the event. The moment you say the words to get out of jail tonight, you may have created the permanent federal fact that removes you from the country, bars your green card, or destroys your naturalization, regardless of what happens to the criminal case afterward. We have seen the pattern across our experience: the quick misdemeanor that turned out to be a crime of domestic violence, the standard DUI disposition accepted without a thought for a Canadian work site
So the counterintuitive rule: slow the case down. The extra week in custody while bail is arranged, the continuance that lets counsel analyze the immigration consequences of every proposed disposition, the negotiation that takes a month longer and produces an immigration- safe outcome, these are not delays. They are the defense in your potential immigration case. The best deal in the criminal case can be the worst deal of your life, and the only way to know which is which is analysis that takes time.
The Rules That Exist Only For Non-Citizens
Beyond the universal arrest rules, four are specific to non-citizens, and each has a reason.
Do not discuss your immigration status with police. You are not required to tell police your status, your country of citizenship, or how you entered the United States, and you should not, because statements about status can become evidence in immigration proceedings. Give identifying information as required, ask for a lawyer, and stop.
Never claim to be a United States citizen.. A false claim to United States citizenship, to police, on a form, anywhere, can be an independent ground of inadmissibility under federal las. A person with a completely defensible criminal case can destroy their immigration future in one sentence at booking. Whatever the pressure of the moment, the answer to “are you a citizen” is a request for a lawyer, never a false yes.
Sign nothing from immigration authorities without counsel. As above: documents presented in custody can waive hearings and consent to removal. No signature is ever urgent.
Tell your own lawyer everything about your status, immediately. This is the rule people get backward. Many non-citizens hide their immigration situation from their own defense attorney, out of habit, fear, or shame, and it is exactly wrong. Your conversation with your lawyer is protected by the attorney-client privilege; nothing you tell your attorney about your status goes to the police, the prosecutor, or immigration authorities. And your lawyer cannot do the single most important part of the job, steering the case toward a disposition that is safe for your particular status, without knowing precisely what that status is: the visa type, the pending applications, the family derivatives, the prior record, all of it. The client who conceals their status from counsel is disarming their own defense.
Your Rights: Padilla And California Law
Under the United States Supreme Court’s decision in Padilla v. Kentucky, your defense attorney is constitutionally required to advise you about the immigration consequences of a plea. California goes further: Penal Code sections 1016.2 and 1016.3 require defense counsel to defend against adverse immigration consequences and direct prosecutors to consider immigration consequences in plea negotiations as part of the interests of justice. These are not aspirations; they are the working tools of the defense. The immigration consequences letter, a documented submission showing the prosecutor exactly what a standard disposition would do to this specific person, is how those statutes are put to work, and it is often what produces the immigration-safe outcome. And where the advice you received in a past case fell short of these duties, the conviction itself may be vacated under Penal Code section 1473.7, the remedy we cover in another article
The practical meaning for you, today: ask your lawyer the specific question, “what does this exact plea do to my exact status,” and do not accept a shrug. If your lawyer cannot answer it, you should speak to another attorney. It is the standard of care, and it is how we practice.
The Do And Do Not Table For Non-Citizens
| Situation | Do | Do Not |
|---|---|---|
| Police questioning | Give required identifying information; ask for a lawyer; stay silent | Do not explain what happened; do not discuss your immigration status |
| Asked about citizenship | Ask for a lawyer | Never falsely claim to be a U.S. citizen, in any form, ever |
| ICE contact in jail | Remain silent; say you want a lawyer | Do not sign anything, however it is described |
| With your own attorney | Disclose your complete immigration situation; it is privileged | Do not hide your status from your own defense |
| Plea offers | Insist on immigration analysis of every proposed disposition before deciding | Do not take the fast plea just to get out; a plea is usually a conviction under federal law even if later dismissed. Confirm with an attorney for specifics. |
| Jail calls | Bail and logistics only; assume recording | Do not discuss the case or your status; recordings can surface in immigration proceedings too |
Frequently Asked Questions For Non-Citizens Facing Arrest
Will Immigration Find Out About My Arrest?
Assume yes. Booking fingerprints are shared with federal databases, so immigration authorities can learn of an arrest automatically. California law limits local cooperation with immigration enforcement, but those limits have exceptions and do not change the immigration consequences of the criminal case’s outcome, which is where the real danger lies.
Should I Tell The Police My Immigration Status?
No. You are not required to discuss your status, and you should not. Give required identifying information, ask for a lawyer, and remain silent. And never falsely claim to be a U.S. citizen, which carries a permanent immigration bar.
Should I Take A Quick Plea To Get Out Of Jail?
Not before the immigration consequences are analyzed. Under federal law, a plea plus any penalty is usually a conviction even if the case is later dismissed. The fast exit that is a good deal for a citizen can be a removal order in disguise for you.
Do I Have To Tell My Lawyer About My Immigration Status?
You should tell your lawyer everything, immediately. The conversation is privileged, it goes nowhere, and your defense cannot be steered toward an immigration-safe outcome without it. Hiding your status from your own attorney is the most self-defeating mistake a non-citizen defendant makes.
What Are My Rights About Immigration Advice In A Criminal Case?
Under Padilla v. Kentucky your attorney must advise you of the immigration consequences of a plea, and California law requires the defense to pursue immigration-safe alternatives and prosecutors to consider immigration consequences. If past counsel failed in these duties, the conviction may be vacated under Penal Code section 1473.7.
What Should My Family Do Right Now?
Arrange bail through the process, retain defense counsel experienced with non-citizen clients immediately, gather the complete immigration paperwork, visas, applications, prior records, for the attorney, and make sure no one, including the arrested person on jail phones, discusses the case or immigration status with anyone but the lawyer.
This article provides general information and is not legal advice, and it is not immigration advice. Immigration consequences are individualized, severe, and evolving, and the interaction of criminal and immigration law is complex. Consult criminal defense counsel experienced with immigration consequences immediately.