Articles Posted in Case Law Updates

The Eleventh Circuit Court of Appeals recently held that Florida Statute 843.01, Resisting an Officer With Violence, is a crime involving moral turpitude for immigration purposes. In Cano vs. U.S. Attorney General, the Eleventh Circuit determined that because the statute in its entirety is a general intent crime, and because the statute requires more than just a mere touching, but an act of intentional violence, the statute falls under the umbrella of crimes deemed to be crimes involving moral turpitude.

The significance of this decision is that an immigrant who pleads guilty to resisting an officer with violence in the State of Florida will be convicted, whether he or she receives a withhold or not, for immigration purposes of a crime involving moral turpitude. That conviction may be the basis for inadmissibility or deportability and could lead to denial of immigration benefits, a green card, denial or reentry into the country or deportation.

This is just one of many criminal convictions that can have dramatic consequences for non-U.S. citizens. Never plead guilty or no contest to a criminal charge without first seeking the advice of an experience immigration attorney.

In a devastating blow to non U.S. Citizens with criminal convictions, the United States Supreme Court recently held in Chaidez v. United States that an immigrant who pled guilty to a criminal charge based on bad or no advice about the immigration consequences of their criminal plea from their criminal defense attorney can not go back and challenge that prior conviction if it is older than the law allows. In the State of Florida, a person can only challenge a criminal conviction that happened within the last two (2) years.

This decision can have traumatic consequences for non U.S. citizens who have old, and even relatively minor criminal convictions. For example, a person that has been in the United States for twenty (20) years as a lawful permanent resident who has a criminal conviction from 15 years ago could be deported based on that criminal conviction. Even if his criminal defense attorney told him at the time that the conviction would not result in his deportation.

The Supreme Court reasoned that the decision in Padilla, which held that a criminal defense attorney had an obligation to affirmatively advise his or her client of the immigration consequences of the criminal plea, was a new rule and does not apply retroactively. Therefore, only those individuals who were convicted after the Padilla decision came out and within the time frames allowed by law will be able to challenge prior criminal convictions.

The Florida Supreme Court has held that the case of Padilla v. Kentucky is not retroactive. The United States Supreme Court held in Padilla that criminal defense counsel had the affirmative duty to investigate and advise their clients of the immigration consequences of their criminal plea. If the criminal defense attorney failed to give proper advise relating to immigration consequences or gave no advice at all, the client could file a motion to vacate the conviction and attempt to withdraw the plea. However, in Florida, under Florida Rule of Criminal Procedure 3.850, a criminal defendant can only challenge convictions that happened within the last two (2) years prior to filing the motion. The question left by the U.S. Supreme Court was whether Padilla was retroactive, applying to convictions that happened prior to the Padilla decision, thus allowing criminal defendants to attack convictions that are more than two years old.

The Florida Supreme Court held in Hernandez v. State, that while a trial court’s pro forma warning to a criminal client that their criminal plea can subject them to immigration consequences is not in and of itself enough to deny a motion to vacate a conviction based on ineffective assistance of counsel, Padilla does not apply retroactively.

This decision is a blow to countless non U.S. Citizens who were provided incorrect or no advice on how their criminal plea could and would lead to their deportation. However, their is a silver lining. The highest court in the land, the United States Supreme Court, should render a decision on this same issue early next year in the case of U.S. v. Chaidez.

The United States Supreme Court has granted certiorari in the case of Chaidez vs. United States. The U.S.. Supreme Court will determine whether an immigrant, who pled guilty or no contest to a criminal charge more than two years ago can go back and attack the previous conviction based on an attorney’s ineffective assistance of counsel in failing to adequately advise them of the immigration consequences of their criminal plea. This case is a direct result of the United States Supreme Court’s decision in Padilla vs. Kentucky, 130 S. Ct. 1473 (2010), where the Court held that a criminal defense attorney must properly advise an immigrant client of the immigration consequences of his or her criminal plea. The rules generally allow a person to go back two years to challenge a criminal plea. Chaidez v. United States will determine whether a person can go back past the two years and challenge a plea that is 5, 10, 15, 30 years old or more.

This case is of global importance in the immigration community. Thousands of immigrants with even minor criminal convictions, including lawful permanent residents and visa holders, run into critical dilemmas when applying for benefits with USCIS. Every criminal conviction, including withholds of adjudication, must be examined thoroughly, before applying for benefits with USCIS. Many prior criminal cases can make the immigrant deportable, no matter how long ago or how minor the criminal case.

If the Supreme Court rules that Padilla vs. Kentucky is retroactive, thousands of immigrants will be able to go back and attack the prior criminal case if they were not properly instructed on the immigration consequences of the plea. Most criminal defense lawyers have little to no knowledge of immigration law. For decades, criminal defense attorneys would routinely instruct immigrant clients that a withhold of adjudication would have no negative effect on their immigration status. This is wholly untrue. Many criminal defense attorneys would give a generic instruction to their clients stating that any criminal conviction or withhold of adjudication could have a negative consequence on their immigration status. This may not be enough, and often is not, according to Padilla.

The Board of Immigration Appeals recentely ruled that immigrants are not entitled to advisal of Constitutional Rights for purposes of immigration proceedings, until they are placed in actual removal proceedings. This means that when an ICE agent detains an immigrant, he or she is not required to read the immigrant Miranda-like warnings prior to questioning. You can find the BIA decision in Matter of E-R-M-F & A-S-M-, 25 I&N Dec. 580 (BIA 2011).