I Am not a U.S. Citizen: Will I Be Deported?

The conviction carries a second sentence. The physician who entered the country on a visa, who completed a residency, who constructed a practice over fifteen or twenty years in a community that regards her as permanent, discovers in the weeks following a federal healthcare fraud conviction that the government intends to remove her from the United States, and that the legal architecture governing that removal treats her decades of presence as irrelevant to the question of whether she may remain. The criminal case concluded. The immigration case, which no one discussed during plea negotiations, has only commenced.

We receive this question from physicians who have practiced in the United States for so long that the fact of their noncitizenship has receded into administrative background, a detail on a renewal form, a box checked on a credentialing application. The investigation alters that. What was background becomes the foreground of a proceeding that operates under different rules, different burdens, and a body of statute that regards a controlled substance conviction or a fraud conviction exceeding a particular dollar threshold as grounds for permanent expulsion from the country the physician has inhabited for most of her professional life.

The Statute Treats the Conviction as a Second Indictment

Section 237(a)(2)(B)(i) of the Immigration and Nationality Act renders deportable any alien who, at any time after admission, has been convicted of a violation of any law or regulation relating to a controlled substance as defined in Section 802 of Title 21. The provision contains one exception: a single offense involving possession for personal use of thirty grams or less of marijuana. No other controlled substance conviction is exempted. The statute does not distinguish between a street-level narcotics transaction and a physician’s prescribing conduct that a jury concluded lacked legitimate medical purpose. The conviction is the trigger. The context of the medical practice, the years of service, the patients treated, the board certifications maintained: none of these constitute a defense in removal proceedings.

The healthcare fraud conviction operates through a separate but equally severe mechanism. Under INA Section 101(a)(43)(M), an offense involving fraud or deceit in which the loss to the victim exceeds $10,000 constitutes an aggravated felony. In healthcare fraud prosecutions, the government’s loss calculations routinely reach into the hundreds of thousands of dollars, because the loss figure includes every claim the government characterizes as fraudulent over the period of the alleged scheme, which in opioid-related prosecutions frequently spans five to eight years of billing. A physician convicted of healthcare fraud involving $10,001 in calculated loss and a physician convicted of fraud involving $4 million in calculated loss occupy the same immigration classification. Both have committed an aggravated felony. Both face mandatory deportation with no discretionary relief available to the immigration judge.

The classification is, if we are being precise, not truly a felony determination at all. The term “aggravated felony” in immigration law bears no necessary relationship to the criminal law classification of the underlying offense. A misdemeanor fraud conviction in state court, if the loss amount exceeds $10,000, constitutes an aggravated felony for immigration purposes. The physician who accepted a misdemeanor plea on the advice of criminal counsel who assured her the matter was resolved discovers that immigration law has reclassified her resolution as the most severe category of removable offense.

The Controlled Substance Ground Requires No Dollar Amount

For the physician convicted of an offense relating to controlled substances, the aggravated felony analysis is secondary. Section 237(a)(2)(B) operates as an independent ground of deportability that requires no loss calculation, no threshold dollar figure, no minimum sentence. A conviction for a violation of any federal or state law relating to a controlled substance is sufficient. The word “relating to” performs the work the government requires. A prescribing offense that a jury found constituted distribution of a controlled substance outside the usual course of professional practice and without legitimate medical purpose is a conviction relating to a controlled substance. The physician is deportable.

In Mellouli v. Lynch, the Supreme Court in 2015 imposed one limitation on this ground: the conviction must categorically involve a substance listed on the federal schedules under 21 U.S.C. Section 802. A state conviction under a statute that criminalizes substances not included in the federal schedules does not trigger deportability under Section 237(a)(2)(B). The holding provides a narrow defense in cases where the state drug schedule diverges from the federal one. For physicians convicted of offenses involving oxycodone, fentanyl, hydrocodone, or any opioid on the federal schedules, the Mellouli limitation offers nothing.

Aggravated Felony Extinguishes Every Form of Relief

In March of 2019, a physician in our practice area received an order of removal sixty days after completing a federal sentence for healthcare fraud. She had resided in the United States for twenty-three years. She had three children who were citizens. The immigration judge acknowledged the equities and stated on the record that the statute permitted no consideration of them.

That is the operational reality of the aggravated felony classification. A noncitizen convicted of an aggravated felony is ineligible for cancellation of removal under INA Section 240A. She is ineligible for asylum under INA Section 208(b)(2)(B)(i). She is ineligible for voluntary departure under INA Section 240B. She is subject to mandatory detention during removal proceedings under INA Section 236(c), which means she will remain in immigration custody from the moment she completes her criminal sentence until the immigration court issues a final order, a period that in contested cases extends for months. Upon removal, she faces a permanent bar to readmission to the United States. Permanent means what the word denotes. There is no ten-year waiting period, no application for a waiver, no mechanism by which the passage of time or the accumulation of equities restores eligibility. The physician who is removed after an aggravated felony conviction does not return.

The criminal sentence has a duration. The immigration consequence does not. The physician serves the term of imprisonment and then serves the permanent exile that follows it, and the second punishment was imposed not by the sentencing judge but by a statute that operates without a hearing on proportionality.

The Moral Turpitude Classification Permits a Narrower Path

Healthcare fraud that does not qualify as an aggravated felony (because the loss amount falls below $10,000, or because the plea was structured to avoid the fraud element) may still render the physician deportable as a crime involving moral turpitude under INA Section 237(a)(2)(A). Fraud offenses categorically involve moral turpitude. A single conviction for a crime involving moral turpitude committed within five years of admission, for which a sentence of one year or more may be imposed, renders the noncitizen deportable. Two convictions for crimes involving moral turpitude at any time after admission, regardless of whether they arose from a single scheme, render the noncitizen deportable.

The path is narrower, but it is a path. Unlike the aggravated felony classification, a crime involving moral turpitude does not extinguish all forms of relief. The physician may be eligible for a waiver of inadmissibility under INA Section 212(h), which requires a showing that the offense occurred more than fifteen years before the application and that the physician has been rehabilitated and her admission would not be contrary to the national welfare, or that denial of admission would cause extreme hardship to a qualifying United States citizen or lawful permanent resident relative. The 212(h) waiver is discretionary. The immigration judge weighs the positive factors against the negative ones. The physician’s years of practice, community ties, family relationships, and rehabilitative conduct enter the calculus. The result is uncertain. Uncertain is a condition the aggravated felony classification does not permit.

The distinction between a conviction that qualifies as an aggravated felony and one that qualifies only as a crime involving moral turpitude can reside in a single element of the plea agreement. That element is determined during the criminal case, in negotiations conducted by criminal defense counsel, at a stage when immigration consequences may not yet have entered the conversation.

Criminal Defense Counsel Bears a Constitutional Obligation

In Padilla v. Kentucky, the Supreme Court held in 2010 that the Sixth Amendment requires criminal defense counsel to advise noncitizen defendants of the immigration consequences of a guilty plea. Where the immigration consequence is clear from the face of the statute, counsel must inform the defendant that deportation will result. Where the consequence is uncertain, counsel must advise that deportation may result. Silence on the subject constitutes deficient performance, and if the defendant can demonstrate prejudice (that she would not have pleaded guilty had she been advised), the plea may be vacated as a product of ineffective assistance of counsel.

The holding in Padilla was necessary because the failure it addressed was pervasive. Criminal defense attorneys who had practiced for decades without consulting an immigration specialist routinely advised noncitizen clients to accept plea agreements that carried mandatory deportation, because the plea reduced the period of incarceration and the attorney evaluated the outcome on criminal metrics alone. You sign the plea and then you discover what the plea contains. Seven of the nine physicians we have consulted with on immigration-related post-conviction matters since 2022 reported that their criminal defense attorney either failed to mention immigration consequences or affirmatively stated that the plea would not affect their immigration status. The advice was wrong, and in several instances the wrongness of the advice is the only remaining basis for relief, though the relief (a motion to vacate the plea under 28 U.S.C. Section 2255 or its state equivalent) requires the physician to demonstrate that the outcome of the case would have been different, a burden that grows heavier with each month that passes after sentencing.

I have reviewed plea agreements in healthcare fraud cases where the immigration consequence was, on the face of the statute, as clear as any consequence in federal law, and where the agreement contained no reference to it. The omission is not rare. It is the default in jurisdictions where the federal defender’s office lacks dedicated immigration counsel and where retained criminal defense attorneys, even capable ones, regard immigration as a collateral matter that falls outside their representation. Padilla declared that it is not collateral. The declaration has not reformed the practice as thoroughly as the holding required.

The Plea Is Where the Immigration Case Is Decided

The noncitizen physician’s immigration fate is determined not in immigration court but in the criminal proceeding that precedes it, in the specific language of the plea agreement, in the statute of conviction, in the loss amount to which the parties stipulate, and in the factual basis that the defendant admits on the record. Criminal defense counsel who understands this constructs the plea to avoid the immigration tripwires. Criminal defense counsel who does not understand it, or who regards immigration as someone else’s concern, constructs a plea that functions as a removal order dressed in the language of resolution.

The strategies are technical and they are specific. A plea to misprision of a felony rather than to the underlying fraud offense may avoid the aggravated felony classification. A stipulated loss amount of $9,999 rather than $10,001 may preserve eligibility for relief that a loss amount one dollar higher would extinguish (though the government is not obligated to agree, and the negotiation of that figure requires counsel who comprehends what a single digit means in this context). A plea to a state offense whose elements do not categorically match a federal controlled substance offense may avoid deportability under Section 237(a)(2)(B), depending on the jurisdiction and the specific statute. A plea that avoids a sentence of imprisonment of one year or more (even if the sentence is suspended) may avoid the aggravated felony classification for certain offenses under INA Section 101(a)(43)(F).

Each of these strategies requires that criminal defense counsel and immigration counsel communicate before the plea is entered, a coordination that does not occur unless someone insists upon it. The physician must be the one who insists.

The Investigation Is the Moment of Exposure

In the fall of 2024, before the most recent enforcement wave, a physician contacted our firm after receiving a target letter from the United States Attorney’s Office in connection with a DEA investigation of his prescribing practices. He had been a lawful permanent resident for nineteen years. He had not consulted an immigration attorney because, as he stated, he did not consider himself to have an immigration issue. He had a green card. He had filed taxes. He had voted in local elections (which, it emerged, itself presented a separate immigration complication that counsel was obligated to address). The target letter concerned conduct that, if it resulted in a conviction for distribution of a controlled substance, would render him mandatorily deportable and permanently barred from the country where he had raised his children, purchased a home, and maintained a medical practice that employed eleven people.

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He did not know this. He would not have known it had he retained criminal defense counsel who did not practice at the intersection of criminal and immigration law. He would have learned it after the plea, after the sentence, after the criminal case had concluded and the immigration proceedings commenced in a detention facility where the rules of engagement bear no resemblance to the federal courtroom he had just departed.

The investigation is the moment. Not the conviction. Not the sentencing. The investigation, when the physician still possesses the full range of options that narrow with each subsequent phase: the option to decline a proffer, to contest the charges, to negotiate a plea that addresses both the criminal exposure and the immigration consequence, to structure a resolution that preserves the possibility of remaining in the country even if the criminal case cannot be won. These options exist at the investigative stage. Many of them do not survive the plea.

If you are not a United States citizen and you are under investigation by the DEA, the FBI, the OIG, or any federal agency for conduct related to your prescribing practices, billing practices, or the operation of your medical practice, you have two cases. The criminal case is the one your attorney is discussing. The immigration case is the one no one has mentioned.

The Discipline of Early Consultation

The physician who consults with counsel experienced in both healthcare fraud defense and immigration law at the onset of the investigation receives something that cannot be reconstructed after the fact: a map of the immigration consequences attached to every possible resolution of the criminal case. That map determines which pleas preserve the possibility of remaining in the United States and which pleas foreclose it. It determines whether the physician should proceed to trial rather than accept a plea that resolves the criminal exposure but triggers mandatory removal. It determines whether a sentence of 364 days rather than 365 days alters the immigration classification. It determines whether the factual basis recited at the plea hearing, which the physician’s criminal attorney may regard as a formality, contains an admission that satisfies an element the government needs to establish deportability.

The consultation is not supplementary. It is the foundation upon which the criminal defense strategy must be constructed if the physician intends to remain in the United States after the case concludes. A consultation with counsel who practices at this intersection is where the architecture of that defense begins.

The question the physician asks is whether she will be deported. The answer depends on decisions that have not yet been made, in proceedings that have not yet concluded, on terms that have not yet been negotiated. What has been determined, by statute, is the consequence of getting those decisions wrong. The consequence is permanent. The law that governs it is indifferent to the years of practice, to the patients served, to the community constructed, to the life that was, until the investigation commenced, indistinguishable from the life of a citizen. The indifference is not a defect in the system. It is the system, and the physician who understands that distinction possesses the one advantage that the statute does not foreclose: the advantage of counsel who sees both cases before either one is resolved.