Immigration Consequences of Florida Criminal Charges

Practical Guide to Determining the Immigration Consequences of Criminal Charges

Introduction: A core skill in representing non-citizens 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 determine if the statute charged falls into one of the categories of offenses that can trigger immigrations consequences, what those specific consequences would be for your client. This will empower you to advise your client and help to negotiate safer pleas.

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”).
• 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 include: 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): 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.
• 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.

***The analysis in the immigration context gets complex from here (divisibility, modified categorical approach etc.), but steer clear of placing too much emphasis on any particular immigration attorney’s analysis. If the analysis gets to that level best practice is to attempt to negotiate a plea to a charge that clearly falls outside of one of the above categories. If not possible, explain to client the possible consequences but that an immigration attorney may have arguments to make.

Step 3: 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).
• 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). 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 : Double-Check Your Analysis with an Expert if any Confusion:
Immigration law is constantly changing. An offense considered a CIMT in 1999 might have a new decision in 2022 saying otherwise, or vice versa. As a criminal defense attorney your job is not to be an expert in the constantly shifting landscape of immigration law. The complex analysis is for removal hearing and immigration applications. Our job as criminal defense attorneys is to be able to identify if the crime charged potentially has immigration consequences, advise our clients of those potential consequences, and work to achieve a result that avoids those consequences.