Immigration-Safe Plea Strategies

Immigration-Safe Plea Strategies: How to Negotiate Pleas to Mitigate Immigration Consequences

Introduction: Once you’ve identified the likely immigration consequences of the charges (as outlined in Topic #3), the next step is crafting a plea or case resolution that avoids or minimizes those consequences while still satisfying the prosecution and court. This is the true art of crimmigration defense – finding creative solutions so that your client’s criminal case can be resolved without destroying their immigration future. In Florida, as in other states, many “immigration-safe” plea strategies exist: from choosing specific charges or subsection, to stipulating to certain facts (or omitting certain facts), to managing sentence length. This article will provide practical strategies and specific Florida examples of plea deals that protect immigration status. It will also discuss how to communicate these asks to prosecutors and judges, leveraging Padilla and the idea of proportional punishment (i.e., avoiding disproportionate immigration penalties).

General Principles of Safe Pleas: In any case involving a non-citizen, try to achieve one or more of the following through the plea:

1. Avoid a deportability trigger – e.g., plead to an offense that does not fall under any deportation ground (no CIMT, no controlled substance, etc.), or at least not under one that affects your client’s current status.
2. Avoid an inadmissibility trigger – especially important if client will seek future status or travel. Sometimes a plea might make the person deportable but if they never leave the U.S. it’s dormant; inadmissibility can be an issue if they ever leave or try to get a green card.
3. Avoid aggravated felony designation – this is critical; an aggravated felony is a fast-track to removal with almost no relief. Even if the client is deportable otherwise, staying below the AF threshold can preserve things like asylum or cancellation.
4. Preserve relief eligibility – For an LPR, a single CIMT is okay if they have 7 years residence and no AF (they can apply for cancellation in removal proceedings). For a non-LPR, certain convictions bar cancellation (any CIMT conviction does, unless it’s petty offense, and any drug except 30g marijuana does). So if your client might seek cancellation, keep the record clean of those bars. Similarly for asylum (avoid “particularly serious crime” by, for example, keeping any single sentence <2 years, since 5-year aggregate can bar withholding).
5. Minimize factual admissions that could hurt in immigration – sometimes the offense isn’t removable, but facts could be used by DHS to argue bad character (e.g., “gang-related” activity, or “domestic” context in a generic assault). You can’t erase what happened, but you can try to craft the record in a way that later does not conclusively prove a damaging fact. (This is called record tailoring or avoiding extra admissions.)

The Immigrant Defense Project’s practice advisory on plea strategies post-Padilla suggests a hierarchy: “First and foremost, try to avoid a disposition that triggers deportability… Second, try to avoid inadmissibility… If you cannot avoid those, then at least try to avoid an aggravated felony… If you can’t avoid that, then try to keep it below ‘particularly serious crime’ level…”. This kind of tiered strategy is very useful in prioritizing what to negotiate for.

Let’s break down common strategies:

Strategy A: Plead to a different offense (charge bargaining). Sometimes the prosecutor just wants a conviction and certain level of punishment, and doesn’t much care which exact count. If an alternative charge exists that satisfies them but is safer for immigration, propose it.

• Examples in Florida:

• Instead of a drug possession charge (deportable), ask to plead to possession of drug paraphernalia (Fla. Stat. §893.147). Importantly, some immigration judges still consider paraphernalia relating to a controlled substance as a “controlled substance offense,” but case law is more favorable on paraphernalia not being a direct controlled substance violation. If possible, do not specify the drug in the paraphernalia charge (or have it be something innocuous like “unknown residue”). Best is when the paraphernalia statute can involve items not necessarily linked to illegal drugs (the statute covers instruments for planting, etc., but context is usually drug). Still, many immigration attorneys report a paraphernalia conviction might avoid inadmissibility if the underlying substance isn’t identified on the record. This is a bit advanced – but bottom line, paraphernalia is often better than possession.
• Instead of theft (a CIMT), consider “unauthorized use of a motor vehicle” (joyriding) or “tampering” or “trespass”. Florida has an offense of Trespass in a Structure or Conveyance (§810.08) which is not a CIMT because it doesn’t necessarily involve intent to commit a crime therein (unlike burglary) and is more like a simple trespass (which is not base or vile). If a client stole something from a store, maybe the state would accept a plea to trespass (being in the store unlawfully) plus restitution, instead of a theft conviction. Trespass is typically not a deportable offense, whereas theft is.
• Instead of a felony battery (which might be a CIMT if serious injury or a deadly weapon is involved), see if the state will accept simple battery (misdemeanor) or even “affray” (Florida affray is a misdemeanor for fighting in public – it’s an old common law charge). Misdemeanor simple battery in Florida is arguably not a CIMT (due to no serious injury requirement) and not a crime of violence under immigration law. An affray, involving mutual fighting, is not a listed deportable crime at all and likely not CIMT. These might be tough sells in serious cases, but for bar fights etc., an affray plea is a great immigration outcome.
• Domestic cases: A common strategy if client is charged with a domestic battery that clearly would be a deportable crime of domestic violence (if it involves violence and a domestic relationship) is to plea to a different offense that doesn’t have the domestic element. For example, “assault” or “battery” on a generic victim instead of specifically under the domestic violence statute. Or even better, “disorderly conduct”. In Florida, sometimes a battery can be pled down to disorderly conduct (§877.03) which is a breach of peace misdemeanor – not a CIMT typically and not a DV crime. You might have to get creative with the narrative (perhaps arguing it was mutual combat or an alcohol-fueled fracas, hence disorderly). That avoids the DV deportation ground and likely CIMT as well.
• “Accessory after the fact”: Florida Statute §777.03 (accessory after the fact) can be a useful plea if the primary offense is problematic. For instance, if someone is charged with sale of drugs (an aggravated felony if a year sentence), maybe they plead to accessory after the fact to that sale, which arguably is not a drug offense per se (it’s categorized differently, though one must be careful: if the underlying offense is an aggravated felony, accessory after the fact with a sentence of 1+ year can also be an AF under the “obstruction of justice” clause after a recent BIA decision – but if you keep sentence <1 year, it should avoid AF). Accessory is often not specifically listed as deportable; it could be CIMT or not depending on underlying crime. This is advanced but a known strategy especially in federal court pleas to avoid drug trafficking AF.
• “Solicitation” or “attempt” vs. completed offense: Sometimes pleading to solicitation of a crime might avoid certain removal grounds. E.g., solicitation to sell cocaine under Fla law – historically, some argued that’s not an illicit trafficking aggravated felony because solicitation isn’t included in the federal AF definition (which lists attempt and conspiracy but not solicitation). The law here is complex and the BIA might still consider it a drug trafficking AF, but there have been cases (like Matter of Vo for solicitation not being an AF). Florida’s solicitation statute §777.04 could be an angle to explore. Attempted offenses are generally treated like the underlying offense for immigration, so attempt doesn’t help unless it reduces the possible sentence to under a year sometimes.

Strategy B: Modify the Sentence to Avoid Triggers.
Many immigration consequences hinge on the length of sentence imposed (even if suspended). The magic numbers are often 365 days (one year) for aggravated felonies, and 180 days for the petty offense exception (if actual sentence > 6 months, the petty offense exception to CIMT inadmissibility can’t apply).

• Sentence of 364 Days: If your client must plead to an offense that could be an aggravated felony at 1 year, try to get 364 days or less. This is colloquially known as the “Florida 364-day strategy.” In fact, in 2019 New York passed a law reducing many max sentences to 364 to help non-citizens. In Florida, many third-degree felonies allow you to argue for 364 days in county jail instead of 1 year+ in prison. For example, a plea agreement could be “364 days in county jail” instead of 1 year. That one day makes the difference between, say, a theft being an aggravated felony vs. not. Even if a prosecutor wants more punishment, you could stack charges concurrently to still max 364 on each. Be careful: If a client is sentenced to concurrent 364s for two separate convictions, immigration might sum them for other purposes (not for AF, but for “two CIMTs” it doesn’t matter the sentence length at all, it’s two convictions that matter). But at least you avoided an AF so the client can seek relief.
• No sentence (or <6 months) for CIMT petty exception: For a first-time CIMT that’s not very serious, try to get a sentence of e.g. 5 months or probation with no jail (or credit time served a few days). The petty offense exception for inadmissibility requires the offense be punishable by <=1 year (most Florida misdemeanors are, felonies are not, so this works best with a first-degree misdemeanor which is exactly 1 year max) and the actual sentence imposed < 6 months. Florida first-degree misdemeanors (like theft under $750) fit the bill if you ensure the sentence is 180 days or less. So, for a noncitizen without status who hopes to immigrate later, getting a misdemeanor petit theft with e.g. 30 days jail or even 6 months probation (with adjudication of guilt) would still allow them to use the petty offense exception – meaning that conviction wouldn’t bar a future visa or green card by itself. In contrast, if you give them 1 year probation with adjudication – there’s an argument that counts as a 1-year “sentence to restraint” (immigration might consider probation as restraint on liberty) but usually they look at jail time. Still, safest is ensure no jail beyond 180 days.
• Suspended sentences count – If a judge imposes 5 years prison suspended to probation, immigration sees 5 years. So avoid suspended time beyond the thresholds. Push for straight probation or a shorter suspended term. For instance, plead to a felony but get “adjudication withheld, 2 years probation.” That might be okay (assuming withhold is still a conviction by immigration, but no jail imposed so CIMT would depend on potential, which is 5 years, so not petty exception eligible – withholds still have the full range). If adjudication is withheld, technically no sentence is imposed, just probation. However, some immigration officers might equate probation to a form of punishment (likely not countable as a “sentence to confinement” though). It’s nuanced, but to be safe, treat the maximum term of probation as irrelevant; what matters is any jail term pronounced.
• Stipulate to time served < 180 days if possible on a CIMT. If client already served 100 days and everyone’s ready to dispose, maybe do “CTS 100 days” and out, instead of 100 days + probation (probation doesn’t matter for petty exception, only the jail).
• Avoid multiple 180-day sentences that run consecutively, obviously, because that defeats the purpose. If two counts each get 180 days consecutive, the petty exception is still lost (because that’s two CIMTs anyway). Better to do concurrent or fold into one count.

Strategy C: Keep the Record of Conviction Clean (Record Tailoring).
Immigration officials are generally limited to considering the record of conviction (the charging document, plea agreement, plea colloquy transcript, judgment) to determine what a non-citizen was convicted of. They usually cannot go beyond to police reports except in discretionary relief contexts. Therefore, crafting what is (and isn’t) in that record is important:

• Don’t include immigration-damning facts unnecessarily. If a plea form or prosecutor wants a factual basis, try to use generic language tracking the
• statute, nothing more. E.g., if your client is pleading to assault, and it happened to be domestic, you might say on record: “On [date], defendant did intentionally threaten harm to the victim with an apparent ability to do so, causing fear. The victim’s name is __.” Do not say “his wife” or “domestic partner” – because if “domestic” relationship is not an element of the offense (and for simple assault it is not), mentioning it only gives ICE evidence to later classify it as a “crime of domestic violence.” If the relationship is not in the statute, immigration can’t assume it; they’d have to prove it by facts – don’t hand those facts over in the plea.
• Similarly, don’t stipulate to drug type if you don’t have to. If pleading to a generic drug paraphernalia, maybe the state is okay with not specifying the drug. If they insist, try for the least bad (marijuana is actually the least bad drug in immigration because there is a waiver for <30g personal use for admissibility – but caution: any marijuana >30g or any distribution is bad. Perhaps just leave it as “controlled substance” without specification, though immigration might assume it was a federally controlled one).
• Pick a subsection with safer language: For example, Florida theft has multiple definitions (deprive vs appropriate, etc.). Not huge difference in immigration, but some statutes have disjunctive elements where one is CIMT and one isn’t. If so, plead specifically to the part that isn’t. For instance, if a statute says “with intent to defraud OR with intent to commit <some non-fraud thing>,” and fraud is CIMT but the other isn’t, ensure the record (like the charge you plead to) tracks the non-fraud element. Immigration only sees what you pled to. So if count says “…with intent to defraud,” that’s bad; if it says something else, better.
• Avoid extra facts in plea colloquy: Train yourself to object or redirect if the prosecutor starts reading unnecessary details (“The defendant was selling 2 kilos of cocaine and had a gun…”). If your plea is just to possession, those extra facts about intent to sell or gun possession are not elements of the offense – the judge doesn’t need them for a factual basis and including them could subject your client to aggravated felony (drug trafficking) determinations or firearms deportability. Politely, you can say, “Your honor, for factual basis we’ll stipulate the defendant had a detectable amount of cocaine on his person, which is sufficient for the possession charge. We’d object to any further facts as unnecessary.” Judges often allow stipulation to minimal facts. It might feel awkward, but it’s crucial.
• Plea in the alternative if possible: In some cases where statute is divisible, you can plead in the alternative to the broad phrasing. E.g., a burglary charge: “Defendant pleads guilty to burglary as charged, either to commit theft or another offense.” That’s not usually how pleas work (they want a specific), but sometimes leaving a bit of ambiguity can later help an immigration argument that the record isn’t clear which version, thus not categorically a CIMT, etc. This is a nuanced strategy often guided by immigration attorneys. Don’t jeopardize the plea integrity, but if a statute has multiple prongs, sometimes the plea can track the statute disjunctively.
• Nolo contendere pleas: In Florida, a no contest plea + adjudication of guilt still counts as a conviction for immigration (because there is a punishment). So nolo doesn’t avoid a conviction. However, a no contest plea might allow you not to allocute to facts. This can limit what ends up in the record. If a prosecutor reads a factual basis and you stand mute (but the court finds it sufficient), you haven’t personally confirmed those facts. Some courts say immigration can still use facts from a factual proffer if uncontested, others are iffy. Ideally, minimize facts regardless of plea type. But nolo can be slightly beneficial for your client not admitting civil liability or certain elements – just note immigration doesn’t care if it’s nolo or guilty; conviction is a convictionimmigrantdefenseproject.org.

Strategy D: Use Post-Conviction Relief if Necessary to Modify the Outcome:
If despite best efforts a client ends up with a conviction that wrecks their status, Florida offers some post-conviction avenues:

• Motion to Vacate for Padilla Violations (Rule 3.850): If you (or prior counsel) failed to advise and the client wouldn’t have pled, they can seek to vacate. Florida’s two-year limit from when the issue was discovered applies (and note Padilla is not retroactive pre-2010). This is a safety net, but not one to rely on – better to get it right the first time. Still, Florida courts have granted postconviction relief in cases of affirmative misadvice or clear non-advice where prejudice is shown (like a client with avenues to relief who pled to an aggravated felony that destroyed those avenuesnacdl.org).
• Sentence Modification (Rule 3.800 or agreement): Sometimes you can go back and ask the court to modify the sentence to 364 days to eliminate an AF. There was a period where immigration might still consider original sentence, but since Matter of Thomas & Thompson (BIA 2015) recognized sentence modifications by courts to alleviate immigration hardship if done nunc pro tunc, ICE should honor it if it was truly to correct the record or for rehabilitative reasons that state law permits. However, an AG decision in 2019 (Matter of Castillo-Perez) attempted to limit recognition of modified sentences done after the fact purely for immigration reasonscliniclegal.org. Still, some state courts are cooperative. If your client had 365 and you re-open and resentence to 364, you at least give them an argument. Florida courts can be motioned to mitigate a sentence within certain time or via agreement.
• Withhold of Adjudication post-plea: Occasionally, if a client successfully completes probation, a judge might convert an adjudication to a withhold (though usually withhold must be at time of sentencing). Even a withhold is a conviction under immigration if there was a plea + penaltyfloridabar.org. But a full vacatur of adjudication (saying no conviction) can help if based on a procedural or substantive defect (if it’s just rehabilitative, immigration won’t recognize ituscis.gov). Aim for vacaturs on constitutional grounds (IAC, etc.) because those are respecteduscis.govuscis.gov.
• Communicating with Prosecutors and Judges:
  You might wonder, how do I get the state to agree to these weird requests (364 days, alternate charges, etc.)? Honesty and leverage are key:
• Be upfront (to an extent) about why: Many prosecutors, once you explain “if we make it 364 instead of 365, my client won’t be automatically deported; if it’s 365, he will be – I’m not asking you to change the punishment effectively, just one day less to avoid that consequence,” they actually may empathizeimmigrantdefenseproject.org. Some will say “I can’t make decisions based on that.” But others, especially in less serious cases, might be willing to accommodate if it doesn’t undermine their interests. Emphasize the collateral nature: “Look, he’ll still do the time, pay the price, but we’re just trying to avoid a family being torn apart by deportation for one minor difference.”
• Use precedent or policies: Mention if there’s DOJ guidance or local policy. For example, a few years after Padilla, some jurisdictions had memos encouraging considering immigration-neutral pleas for minor offendersilrc.orgilrc.org. If you have sample policies (like the one ILRC shares where a DA’s office accepts that goalilrc.org), show it (perhaps redacted) to the prosecutor to say, “This is not unprecedented; prosecutors in other areas do consider these things.”
• Leverage strength of case or equities: If the case is not a slam dunk for the state, use that to push for an immigration-safe plea. E.g., “My client has no priors, the victim is not keen on harsh penalties, and by the way, if he’s convicted of X, he’ll be deported, but if we do Y, he can stay and support his family – can we find a middle ground?” Provide positive info: U.S. citizen family, longtime resident, etc., which a prosecutor might find irrelevant legally but could make them more amenable to a creative solution.
• Involve the judge if needed: Some judges, especially in plea bargaining states like Florida, might assist. At a plea hearing, if you explain the 364-day thing, many judges know about it now (some call it the “Padilla provision” informally). They often have no objection if the state doesn’t – or if the state objects to changing 12 months to 11 months 29 days, a judge might question why not. However, be cautious: it’s ideal if both parties agree. But judges do have discretion in misdemeanor sentencing and often in accepting a plea agreement they can adjust small details with consent.
• Keep it low-key: You don’t necessarily want to announce in open court “We’re doing this so he won’t get deported.” That could backfire or be noted by ICE if they monitor (unlikely, but transcripts exist). Instead, phrase it as “In the interest of justice and given the defendant’s lack of record, a slightly reduced sentence is appropriate,” etc. Or simply ensure the plea agreement submitted already has the safe terms so no debate is needed on record.
• Common Florida Safe Plea Scenarios Recap:
• Drug charge ➔ plead to paraphernalia or attempt, and/or get a withhold + diversion.
• Felony with 3rd deg ➔ cap sentence at 364 days jail or probation without adjudication if possible.
• Theft CIMT ➔ plead to trespass or other non-CIMT, or ensure single CIMT with ≤180-day sentence.
• Domestic battery ➔ reduce to simple battery (no injury), or disturbance/disorderly conduct.
• Two charges ➔ merge into one count if possible to avoid “two CIMTs” or multiple convictions.
• Assault with a deadly weapon (which would be CIMT) ➔ perhaps plead to simple assault (no weapon finding, which might be not CIMT since could be mere threat without intent to do evil).
• Driving offenses (DUI) ➔ DUI is not deportable per se (unless injury = CIMT), so usually okay. Just avoid adding things like suspended license convictions (not deportable either, but accumulating many misdemeanors can affect DACA or prosecutorial discretion).
• Plea to juvenile delinquency if youth: If you can transfer a case to juvenile (even someone just turned 18 but offense at 17), a delinquency adjudication is not a “conviction” for immigrationuscis.gov. That’s huge. Sometimes worth exploring for youthful defendants – try to keep them in juvenile system.
• Pitfalls to Watch:
• Don’t agree to a plea that achieves one goal but messes up another. E.g., you avoid AF by doing 360 days + 360 days consecutive on two CIMTs – you avoided AF but you made two CIMTs (deportable) and also possibly ruin petty exception. Always cross-check overall impact.
• Beware of pleading to an offense that the client didn’t actually do or facts don’t support simply for immigration reasons – ethically, ensure there is at least a factual basis. Usually there’s some fitting charge.
• If client is not guilty and wants trial – sometimes a trial win is the best immigration result. Safe pleas are for when trial risks are high. Don’t overly pressure a client to plea just to save immigration status if they have a decent shot at acquittal. Let them decide the risk (especially if they are detained and thus want out).
• If you secure an immigration-safe plea, advise the client on remaining risks. For example: “You pled to possession of paraphernalia, which is good. However, USCIS might still hassle you about it if you ever apply for something, and if you get another offense, all deals are off. So keep clean, and consult an immigration attorney before traveling or filing anything.” Essentially, a safe plea is a relief but not a guarantee of no consequences – sometimes just lesser consequences. Make sure client has realistic expectations.
• Conclusion: Negotiating immigration-safe pleas is where a defense attorney truly becomes a problem-solver for their non-citizen client. It requires creativity, knowledge of both criminal and immigration law, and often some extra legwork in persuading prosecutors or judges. But the payoff is enormous: you may succeed in protecting your client from almost certain deportation or inadmissibility while still resolving the criminal case effectively.