When a non-US citizen or immigrant is arrested or faces criminal prosecution in Miami, Florida, there are several additional factors that your criminal defense lawyer must take into consideration before counseling you on the best approach to your case. Non-US citizens have concerns that go beyond the immediate risk of being convicted or sentenced to jail.

For example, if you are facing domestic violence charges, the defense strategy should account for both the criminal case and your immigration status.

If the charge itself involves alleged immigration crimes, such as illegal reentry or immigration fraud, your defense must address the criminal charge as well as its effect on your immigration status.

The Attorney You Choose Can Make a Difference

Whether you are here on a visa, are a lawful permanent resident, are “out of status,” have a pending petition or claim, or are undocumented, the decisions you and your attorney make regarding your criminal case can jeopardize your ability to continue living legally in—or traveling to—the United States. Unfortunately, many criminal attorneys fail to appreciate the nuances when criminal law intersects with immigration.

Choose a criminal defense attorney who understands how a criminal case can affect a non-U.S. citizen’s immigration status and can work with immigration counsel when needed.

Immigration Consequences

Inadmissibility

Criminal inadmissibility can affect visa applications, entry into the United States, and eligibility to obtain a green card through adjustment of status. Grounds include:

  • A conviction or legally sufficient admission involving a federally controlled substance, including certain drug possession offenses.
  • A conviction or legally sufficient admission involving a crime of moral turpitude. Certain theft offenses, fraud offenses, and sexual offenses may qualify; the offense’s elements and controlling law matter.
  • Conduct covered by the prostitution or commercialized-vice grounds, which do not always require a conviction.
  • Two or more convictions, excluding purely political offenses, with combined sentences to confinement of at least five years.

Exceptions and waivers require a separate review. For example, the petty-offense exception can cover a single crime involving moral turpitude when the maximum possible jail term is one year or less and any jail sentence imposed is six months or less. That exception does not apply to controlled-substance offenses.

Disqualification, Deportation, and Citizenship Bar

Beyond inadmissibility, the outcome of a criminal case can affect your ability to remain in the United States or qualify for immigration relief and citizenship. Possible consequences include:

  • disqualification from waivers and defenses otherwise available in immigration cases;
  • being ineligible for asylum because of a disqualifying offense;
  • deportation;
  • or a criminal bar to obtaining U.S. citizenship.

Avoiding a Conviction

State Law Definition

A plea that avoids an adjudication of guilt in Florida can still carry serious immigration consequences. Before accepting a plea, a non-U.S. citizen needs to understand how both Florida law and federal immigration law treat the proposed outcome.

In eligible Florida cases, a judge may withhold adjudication after a guilty or no-contest plea or a finding of guilt. This means the judge does not formally adjudicate you guilty. But a withhold does not erase the case, and whether it counts as a conviction under Florida law depends on the particular statute or legal issue.

Whether you face state charges or federal criminal charges, your lawyer must assess the immigration effect of the plea and any court-ordered penalties. A state-law label alone does not answer that question.

Immigration Law Definition

Under 8 U.S.C. § 1101(a)(48)(A), a conviction includes a formal judgment of guilt. When adjudication is withheld, a disposition also counts as a conviction if both of the following conditions are met:

  • a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and
  • the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

Federal immigration law recognizes both formal judgments of guilt and certain dispositions in which adjudication is withheld. A withhold can count as a conviction when both requirements below are met.

  • you are found guilty at trial, plead guilty or no contest, or admit sufficient facts to warrant a finding of guilt;
  • and the judge orders some form of punishment, penalty, or restraint on your liberty.

Dispositions that Immigration Considers a Conviction

Fines, court costs, imprisonment, and probation are all considered punishments. Consequently, the following dispositions in Florida are usually going to be treated as convictions for immigration purposes, even if the Florida court withheld adjudication.

  • pleas of guilty or no contest accompanied by the imposition of court costs (including pleas for “credit time served”);
  • any sentence that imposes a fine or court costs;
  • suspended or deferred sentences;
  • any sentence that involves any term of probation, however short;
  • as well as “conditional nolle pros” pleas, where the defendant initially pleads guilty or no contest with the agreement that the plea will be vacated after completing certain conditions.

Considering the above, the attorney who represents you must have the necessary knowledge and experience defending foreign nationals. The attorney you choose to represent you can make a difference, even in seemingly “less serious” misdemeanor cases.

If you have also been served with an injunction petition, ask your lawyer to review the civil case alongside any criminal or immigration matter.

Contact an Experienced Defense Attorney

Over the years, we have represented hundreds of non-U.S. citizens/immigrants/foreign nationals in a wide range of cases. There is a good chance we have a working knowledge of your type of case and your specific immigration-related needs and concerns. Browse our criminal defense case results for examples of cases we have handled and outcomes we have obtained.

Getting legal advice before entering a plea gives your defense lawyer time to assess how the proposed outcome could affect your present or future immigration status.

CALL US NOW for a CONFIDENTIAL CONSULTATION at (305) 538-4545, or simply take a moment to fill out our confidential and secure intake form.* The additional details you provide will greatly assist us in responding to your inquiry.

*Due to the large number of people who contact us requesting our assistance, it is strongly suggested that you take the time to provide us with specific details regarding your case by filling out our confidential and secure intake form. The additional details you provide will greatly assist us in responding to your inquiry in a timely and appropriate manner.

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