Immigration Consequences of Florida Criminal Charges

Practical Guide to Determining the Immigration Consequences of Criminal Charges

Introduction: A core skill in crimmigration representation is being able to analyze a criminal charge or conviction and predict its immigration consequences. Is the offense a deportable offense? An inadmissible offense? An aggravated felony? A crime involving moral turpitude? Could it bar citizenship or lead to mandatory detention? These questions can be complex, but this section offers a practical, step-by-step guide – tailored for Florida practitioners – to break down the analysis. By following a structured approach, you can go from the language of a Florida statute to an understanding of how immigration authorities will view that offense. This will empower you to advise your client (Topic #1) and to negotiate safer pleas (Topic #4).

Step 1: Gather Complete and Accurate Information on the Charge/Conviction.
Start by identifying exactly what you’re dealing with:

• Statute and subsection: Get the precise Florida Statute number and subsection your client is charged under (or pled to). Immigration consequences often hinge on details like degree and subsection. For example, “burglary” consequences can differ if it’s burglary of a dwelling (violent felony under some interpretations) versus burglary of a conveyance. Florida Statutes have specific subsections – e.g., §810.02(3)(a) vs (3)(b) for burglary. Know which one.
• Categorize the offense type: Is it a drug offense? A theft or fraud offense? A violent offense? A sex offense? Categories matter because immigration law has broad classes (controlled substance offenses, crimes involving moral turpitude, aggravated felonies of various types). Sometimes one offense can fall into multiple classes (e.g., robbery is a theft and often a “crime of violence”).
• Disposition details: Conviction or not? If it’s a pending charge, consider likely pleas. If it’s a prior conviction, note if adjudication was withheld (though still a conviction for immigration), sentence length (very important for aggravated felonies, and whether it was a plea or trial verdict (usually irrelevant to immigration, but the record of conviction might differ).
• Client’s immigration status and history: This doesn’t change how the offense is categorized, but changes which consequences matter. A lawful permanent resident (LPR) and an undocumented person are both deportable for a controlled substance conviction, but an LPR might have more to lose in terms of eligibility for relief (and might also face inadmissibility issues upon traveling). A DACA recipient might be less concerned with deportability (since any conviction likely ends DACA anyway) but more with future admissibility.

Step 2: Determine If the Offense Triggers Deportability (INA §237) or Inadmissibility (INA §212) – or Both.

• Deportable offenses includeilrc.orguscis.gov: Aggravated felonies, crimes involving moral turpitude (CIMTs) committed within 5 years of admission (7 in some cases) if punishable by a year+, any controlled substance conviction (except possibly one marijuana <30g possession), firearm offenses, domestic violence offenses (which include crimes against protected persons that involve violence), and a few others.
• Inadmissible offenses include: Any CIMT (unless the one-time petty offense exception applies), any controlled substance offense (with no small weed exception for inadmissibility except a very narrow personal use of 30g marijuana exception), multiple convictions with 5-year aggregate sentences, prostitution and vice, etc.
• Aggravated felony (AF): Not a ground of deportability by itself (well, it is a ground by itself actually), but also bars many forms of relief. Aggravated felonies are a list of offenses in INA §101(a)(43). If your offense fits one of those categories (and the conviction meets any thresholds like sentence length), the client is deportable and also disqualified from asylum, cancellation of removal, etc.
• Is it a CIMT? Moral turpitude is a hazy concept – essentially, offenses that are inherently dishonest, base, or vile. Theft, fraud, many assaults if they involve intent to injure, are CIMTs; simple negligence crimes are not. Florida examples: Petit theft is a CIMT (it involves intent to permanently deprive, whereas driving without a license is not.
• Controlled substance offense? Easiest to identify – does the statute relate to a drug on the federal controlled substances list. In Florida, chapter 893 offenses almost always do (caveat: Florida’s controlled substance schedules historically included a couple substances not on the federal lists, leading to some litigation – but practically, any drug conviction here will be assumed a controlled substance offense by immigration unless proven otherwise). Even a withhold on a possession charge counts.
• Domestic violence? If the client is an LPR or other with legal status, a conviction for a “crime of domestic violence” after admission can make them deportable. This requires the offense to have use or attempted use of force as an element and the victim to have a certain relationship (spouse, co-parent, etc.). Florida battery, which can be just a touch, raised issues since it might not meet the force requirement per federal case law. However, Florida’s domestic battery by strangulation, for example, clearly involves force. Also note injunction violations can cause deportability under the “domestic violence” provisions if it’s an order of protection.
• Firearms offense? Florida has many gun-related statutes; any conviction involving a firearm or destructive device (except perhaps carrying a concealed firearm as a minor offense) can trigger deportability under the firearm ground. Check if the statute specifically mentions a firearm. If it can be violated by other means (e.g., “weapon” not specifically gun), then maybe not. But Florida’s statutes like felon in possession of a firearm, shooting into a building, etc., would count.
• Miscellaneous grounds: e.g. espionage, national security, human trafficking – not common for most defense cases, but mention if relevant.

If the offense clearly falls into one of these categories, mark it. Sometimes you have multiple: e.g. a burglary of a dwelling with 1-year+ sentence could be an aggravated felony (burglary is listed as AF if 1+ year sentence), a CIMT (burglary often considered CIMT since an intent to commit theft or felony inside), and potentially a “crime of violence” (depending on how FL defines it and federal interpretation). You need to be thorough.

Step 3: Analyze the Statute – Categorical and Modified Categorical Approach.
This is the more technical part:

• Categorical approach basics: Immigration (and federal courts) look at the criminal statute, not the underlying conduct, to decide if it matches a removal ground. They ask, does every violation of this statute meet the definition of, say, a CIMT or aggravated felony? If yes, then the statute categorically is that type of offense.
• Divisibility and modified approach: If the statute has multiple distinct parts (divisible) and some parts are deportable and some are not, they can use the “modified categorical approach” – looking at certain documents (charging doc, plea colloquy, etc.) to see which part the person was convicted under.
• For Florida practitioners, understanding divisibility is key. Many Florida statutes have broad language. Example: Florida’s theft statute (§812.014) covers theft of anything – could be CIMT. But petty theft under $300 for first offense often is treated as a CIMT too (because intent to steal is turpitudinous). Another example, Florida’s drug statute (§893.13) doesn’t specify the drug in the statute subsection – it’s handled in charging. Is it divisible by drug? The BIA has said yes, substance is an element. But there was litigation (Obeya v. U.S. Att’y Gen., etc.) about whether Florida’s controlled substance schedules being overbroad vs federal. The details can get wonky. As a practical approach: if you identify a potential problem (e.g. client has a possession of a drug conviction), assume it triggers removal unless an immigration lawyer tells you there’s a known technical defense.
• Use resources: The CLINIC case law charts or IDP aggravated felony chart can save you a lot of time by summarizing how courts have ruled on certain Florida statutes. For example, an IDP chart might note: “Eleventh Circuit: Fla. Stat. 893.13 (sale of cocaine) = illicit trafficking AF; Fla. Stat. 893.13 (mere purchase) – arguably not AF if no intent to distribute.” Or “Matter of ___ holds Fla. burglary is a CIMT if intent was theft but not if intent was trespass.”
• Real-world tip: Often, to determine consequences, you don’t need to reinvent the wheel – see if the scenario has come up in case law. Florida is in the 11th Circuit, so Eleventh Circuit and BIA precedent is binding. Do a quick search or use reference guides to find if “Florida [statute] moral turpitude” or “Florida [statute] aggravated felony” yields a case. E.g., Gelin v. U.S. Att’y Gen., 837 F.3d 1236 (11th Cir. 2016) (holding Florida felony battery is not a crime of violence under the categorical approach, thus not an aggravated felony for crime of violence purposes, partly because it can be committed by touching).
• When unsure or if the law is evolving (as with certain drug cases post-Mathis and Shular), mark it as “uncertain risk” and lean conservative in advising (warn the client that it could be considered deportable).

Step 4: Check Aggravated Felony Definitions in Detail (if applicable).
Aggravated felonies (AF) are defined in INA §101(a)(43) with specific categories:

• Theft or burglary with 1 year + sentence.
• Fraud or tax evasion with loss > $10,000.
• Crimes of violence with 1 year +.
• Murder, rape, sexual abuse of a minor (any sentence).
• Drug trafficking (usually sale, distribution, or possession with intent) – note simple possession is generally not AF (except federal analogue of flunitrazepam or a second possession convicted federally).
• Firearms trafficking, child pornography, racketeering, etc.
• If your case falls in one, confirm details: e.g. loss amount must be tethered to the count of conviction for fraud – check the court documents.

Florida specifics: Grand theft can easily be an AF if sentenced to a year. Sale of cocaine with a year is an AF (illicit trafficking). But something like simple battery, no matter the sentence, is not an AF unless it qualifies as “crime of violence” (which Florida simple battery doesn’t under current law). So identify if any AF applies because AF status strips many defenses.

Step 5: Identify Potential Relief and Future Status Issues:
After determining how the offense is classified, think ahead:

• Is the client currently in status? If LPR, will this conviction make them ineligible for naturalization until some years pass (due to bad moral character) or deportable? If on a visa, could it void their visa? If DACA, it likely will terminate DACA if it’s any significant misdemeanor or felony.
• If undocumented, does this conviction bar common forms of relief? For instance, cancellation of removal for a non-LPR requires no convictions for offenses under INA 212(a)(2) (essentially CIMTs and drug offenses) and certain others. A single CIMT that falls under petty offense exception wouldn’t bar it, but multiple would. Asylum is barred by aggravated felonies. Even withholding of removal is barred by “particularly serious crimes” (usually aggravated felonies with 5-year sentence or inherently serious crimes like murder)immigrantdefenseproject.org.
• Future family immigration: Perhaps the client is undocumented but hopes one day to legalize through marriage or DREAM Act etc. A conviction that is an inadmissible offense means they’d need a waiver to get a green card. Some waivers are available (like a waiver for a single possession of marijuana under 30g, or for a CIMT if one offense and 15+ years ago or extreme hardship to US spouse). Some are not (no waiver for most drug offenses aside from that marijuana exception). So, if your analysis shows “if you plead to X, you will be inadmissible with no waiver,” that basically forecloses any future status. That’s crucial to tell the client and to consider when negotiating (maybe you can avoid that by altering the plea).
• Citizenship eligibility: An LPR client might want to naturalize eventually. A CIMT within 5 years or multiple CIMTs can not only make them deportable but also show lack of good moral character. Even if not deportable, certain convictions can bar a finding of good moral character for the statutory period (typically 5 years for citizenship)uscis.gov. For example, a single DUI isn’t a deportable crime, but two DUIs might raise good moral character issues especially if one involved endangerment. If your client’s goal is citizenship, flag how the conviction will look on a naturalization application.

Step 6: Use Visual Aids and Tools for Clarity:
Flowcharts and checklists can help ensure you didn’t miss something:

• For instance, you might create a quick checklist: “Is it a drug offense? Yes -> Deportable and inadmissible (any amount). Is it a CIMT? If yes, then… If client has only this one, check petty offense exception (offense max <1 year and sentence <6 months)nacdl.org. If exception applies, not inadmissible for CIMT. Is it DV-related? etc.”
• IDP’s two-page “Immigration Consequences of Convictions” checklistimmigrantdefenseproject.org is exactly this kind of tool – it lists categories of crimes and what they affect. For example, it will list “Crime of Moral Turpitude: makes one deportable if (a) one CIMT within 5 years of admission + possible 1 year sentence, or (b) two CIMTs anytime; makes one inadmissible unless petty offense exception; bar to GMC,” etc.immigrantdefenseproject.org. Keep such a checklist handy when analyzing.
• Some defenders literally attach a cover sheet to the file summarizing the analysis: e.g., “Immigration Consequences Summary: Deportable for CIMT – yes (theft, 3rd deg felony, punishable >1yr, committed within 5 yrs of entry). Aggravated Felony – no (sentence 6 months, less than 1 year). Inadmissible – yes, CIMT, no petty exception because 3rd deg felony >1yr possible. Relief: LPR cancellation maybe (only 1 CIMT? Cancellation requires <1 CIMT conviction). Naturalization: cannot until 5 years after sentence because CIMT. Advise client travel risky, could be picked up by ICE upon return.”

Step 7: Consider Multiple Charges or a Plea to Multiple Counts:
If the client faces several charges, analyze each and also the combined effect. Two CIMTs are a separate ground (two or more CIMTs any time after admission = deportable, regardless of sentence or timing). So if a plea deal involves pleading to two misdemeanor thefts, that’s actually worse immigration-wise than pleading to one felony theft (because two CIMTs triggers removal with no timing element, whereas one CIMT might not if outside 5 years or fits petty exception)floridabar.org. This informs your negotiation: consolidating counts or having one count dismissed in exchange for something else might be hugely important. Or if a client is charged with say DUI and no license – neither is a deportable offense generally; pleading to both is fine because neither triggers CIMT or such (assuming no aggravations like DUI with injury which could be CIMT). But pleading to theft and battery together – one CIMT + one CIMT = two CIMTs -> deportable. So you might negotiate to drop one of them or plead down one to a non-CIMT variant.

Florida Examples to Illustrate Analysis:

1. Battery on a Law Enforcement Officer – Fla. Stat. §784.07: Underlying offense is battery (§784.03). Florida simple battery is just touching or striking – not necessarily violent force, no injury required. As such, case law (BIA and Eleventh Circuit) suggests it’s not a CIMT (because it can be just unwanted touch, not morally turpitudinous) and not a crime of violence under the AF definition (because of the minimal force element, see Gelin, mentioned above). However, because it’s on a law enforcement officer, does that change? For deportability, there’s no separate ground for assaulting police. It could still be a CIMT if the court looks at it as a battery with a “knowing the victim is an officer” – some courts find violence against protected classes is turpitudinous, some don’t if no serious harm intended. Not straightforward. But likely it’s not an aggravated felony unless serious injury and 1 year+ (maybe could be COV if injury involved). So analysis yields: probably not CIMT (err on side of caution though if it involved intentional harm), not controlled substance, not AF unless unusual circumstances, not DV (officer is not domestic relationship), not firearm (unless a weapon used). So the client might avoid removal grounds from this, but caution: if the conduct involved violence, an immigration judge might subjectively equate it to “crime of violence” for discretionary decisions. Also, multiple batteries can trigger CIMT issues. Use case law or an expert to double-check. Sometimes, one adds the element “battery on officer = intentional knowing touch of officer” – arguably still not CIMT because no inherently base conduct.
2. Possession of Cocaine – Fla. Stat. §893.13(6)(a): Controlled substance offense – absolutely deportable and inadmissible. Not AF (simple possession is usually not AF). No waiver except possibly if it were marijuana under 30g (it’s cocaine, so no). If client is undocumented, this conviction will make them ineligible for almost any future status (because there’s no waiver for cocaine possession for green card through family, etc.). If client is LPR, they become deportable (with a narrow exception: if it’s a first-time simple possession and they have some defense like if they qualify for FFOA treatment equivalent, but Florida’s withhold might not protect them as state rehabilitative actions generally don’t erase the immigration impact. Immigration relief: LPR cancellation is barred if client has any drug conviction other than one marijuana <30g; non-LPR cancellation is barred as well. So this one small charge is basically a life-altering immigration event. That informs every decision – ideally, try to get a plea to something non-drug (like paraphernalia or accessory after the fact to someone else’s possession) if possible.
3. No Valid Driver’s License (Misdemeanor) & Giving False Name to Law Enforcement: Neither is a CIMT (driving without license is regulatory, giving false name might seem dishonest but Florida courts have held minor lies not under oath are not CIMTs unless it interferes with justice significantly – though it’s arguable). But taken together, two convictions that are not CIMTs means no CIMT issue at all (because if neither individually involves moral turpitude, two of them don’t magically create it – it’s two CIMTs only if each is CIMT). So likely no removal grounds triggered. This client might have no immigration consequence except maybe a hit to “good moral character” for lying to police if they ever apply for a benefit in the next few years (immigration officers sometimes frown on any police interference). But not a removability problem. Result: you can focus on criminal side primarily.

Step 8: Double-Check Your Analysis with an Expert if High Stakes:
If after doing the above you find that the consequence is severe (deportation certain, etc.), or if the law is at all unclear, run it by an immigration attorney or use resources like the ILRC attorney-of-the-day or IDP helpline. This is especially important for novel issues (e.g. Florida just passed a new law, or your client’s conviction is old and under a repealed statute). Laws change (e.g., what was an AF last year might not be if the Supreme Court reinterpreted the definition of a “crime of violence”). Case law like Mathis (2016) and Descamps changed how divisibility is determined. The ground is always shifting, so an offense considered a CIMT in 1999 might have a new decision in 2022 saying otherwise, or vice versa. Staying current via practice advisories (like CLINIC’s updates on BIA and Circuit cases) is valuable.

Conclusion: By systematically identifying the statute of conviction, checking it against removal grounds, applying the categorical approach, and considering the client’s status and relief options, you can determine the immigration consequences of most charges with a high degree of confidence. This analysis is the backbone for providing effective advice and crafting safe pleas. It might seem laborious at first, but with practice (and using handy charts and resources), it becomes second nature. Moreover, engaging in this analysis positions you to be a stronger advocate – you can argue more persuasively to prosecutors about why a certain plea is necessary (e.g., “My client can’t take a theft because it will deport her, but a trespass would not – here’s why…”). In the next guide, we will build on this by exploring immigration-safe plea strategies: how to use the knowledge of consequences to negotiate outcomes that protect your client from the worst immigration outcomes whenever possible.