When a non-US citizen or immigrant is arrested or faces criminal prosecution in Miami, Florida, there are a number of additional factors that your defense attorney must take into consideration before counseling you on the best approach to your case. Non-US citizens have concerns that go above and beyond the immediate concerns of being convicted or sentenced to jail.
Whether you are here on a visa, are a legal 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, there are many criminal attorneys who fail to appreciate the nuances that exist when criminal the criminal law and immigrants intersect. That’s why it is critical for you to hire a defense attorney with the experience and knowledge necessary to competently represent Non-US. citizen immigrants.
For example, even if you have lawful status in the United States, you may be deemed criminally inadmissible if you leave, and then attempt to re-enter the country if you have:
- a conviction for a controlled substance offense (possession of a controlled substance, e.g. cocaine);
- admitted to the commission of a controlled substance offense even if you do not have a conviction;
- a conviction for a crime involving moral turpitude, which includes a broad range of offenses, including:
and, the majority of sexual offenses.
- a conviction for a prostitution offense or commercialized vice offense;
- Convictions for two or more crimes, regardless of category, plus a combined prison sentence of 5 years or more.
The above scenarios only relate to a person’s ability to enter or re-enter the United States. The wrong disposition in a criminal case can also potentially result in:
- disqualification from waivers and defenses otherwise available in immigration cases;
- being barred from presenting an asylum claim;
- or, a criminal bar to obtaining U.S. citizenship.
One of the most common problems arises when a defense lawyer advises a client to accept a case disposition which is completely acceptable for a U.S. citizen, but can spell disaster for one who is not. The issue relates to the differing definitions of the word “conviction” in the state criminal law and immigration contexts. Under Florida law, a judge has the power to sentence you without “convicting” you. The legal term that Florida uses for the word conviction is an adjudication. When a defendant pleads no contest, pleads guilty or is found guilty at trial of a drug crime or domestic violence, for example, at the time of sentencing the judge either adjudicates the defendant guilty or “withholds adjudication.” As explained above, an adjudication is synonymous with a conviction under Florida law. When the judge “withholds” your adjudication, he or she is choosing not to adjudicate you guilty. Therefore, you do not receive a conviction
In contrast, federal immigration law has its own definition of what constitutes a conviction. In other words, even if you were not convicted according to Florida law, that does not mean that immigration authorities won’t view your case disposition as a conviction.
In immigration law the term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
• 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.
There are, therefore, two ways in which a disposition can constitute a conviction in the immigration context. The first situation is when the judge enters a formal judgment of guilt. This is the equivalent of an adjudication under Florida law and is considered a conviction under Florida law as well. The second situation is—and this is where federal immigration law and Florida law diverge—when the judge withholds adjudication as explained above. In this situation, there are two requirements for the disposition to be considered a conviction:
- you are found guilty at trial, plead guilty or no contest, or admitted sufficient facts to warrant a finding of guilt;
- and, the judge ordered some form of punishment, penalty or restraint on your liberty.
Fines, court costs, imprisonment, and probation are all considered punishment. Consequently, the following dispositions in Florida are usually going to be treated as convictions for immigration purposes, even if you have not been convicted under Florida law.
- pleas of guilty or no contest accompanied by the imposition of courts 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 prosse” 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, it is extremely important that the attorney who represents you has 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.
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 that we have a working knowledge and familiarity with both your type of case, as well as with your specific immigration-related needs and concerns. Feel free to browse through the results section of our site for a representative sample of some of our past cases, and the results we have achieved for our clients.
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