Criminal Convictions

When are the Immigration Consequences of a Criminal Conviction, “Truly Clear?”

Published on: September 2, 2014 | by Lasnetski Gihon Law

The U.S. Supreme Court ruled in Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010) that defendants have a Constitutional right to receive accurate advice from their criminal attorneys about the immigration consequences of any criminal conviction. The Florida Supreme Court has ruled that where the immigration consequences of a particular conviction are “truly clear”, “Padilla requires effective counsel to provide more than equivocal advice concerning those consequences . . . [and] in those circumstances, an equivocal warning from the trial court is less than what is required from counsel and therefore cannot, by itself, remove prejudice resulting from counsel’s deficiency.” Hernandez v. State, 124 So. 3d at 763.

The U.S. Supreme Court and the Florida courts have not defined with any specificity what it means when immigration consequences are “truly clear.” However, the most prudent course of action for any criminal attorney is to consider the consequences “truly clear” when a plea to a crime would subject a non-citizen defendant to any ground of removability under INA § 237(a)(2) or a ground of inadmissibility under INA § 212(a)(2). The problem with this approach is that under the current state of immigration law and policy, any plea to any crime, even the most minor misdemeanor can have definite and “truly clear” negative immigration consequences.

The courts have recognized that a conviction for a crime that is considered an aggravated felony mandates the Defendant’s deportation and also bars his eligibility for discretionary relief from removal. See Hernandez v. State, 124 So. 3d 757, 760 (Fla. 2013). This is certainly the type of plea to a crime that has “truly clear” consequences. In addition, any plea to any controlled substance offense (with one very narrow exception related to simple possession of less than 30 grams of cannabis or the paraphernalia related thereto and only for certain non-citizens) has “truly clear” negative immigration consequences and will subject almost every non-citizen to deportation. Any plea to any crime involving a firearm likely has “truly clear” negative immigration consequences. After that, the immigration jurisprudence becomes quite murky and there are few “truly clear” immigration consequences related to crimes of domestic violence, child abuse, child neglect, violations of protective orders or injunctions, stalking, and crimes involving moral turpitude.

SLG Attorney Provides Training to the Public Defender’s Office in Jacksonville

Published on: August 29, 2014 | by Lasnetski Gihon Law

On Friday, August 22, 2014, John Gihon, a partner with Lasnetski Gihon Law, provided a two-hour training course to attorneys with the Public Defender’s Office in Jacksonville, Florida. The training course was entitled, the Immigration Consequences of Criminal Prosecution, or “Crimmigration.”

Mr. Gihon is a former state prosecutor and former Senior Attorney with U.S. Immigration and Customs Enforcement (ICE). He has provided numerous trainings to federal law enforcement officers and federal attorneys regarding the immigration consequences of Florida criminal convictions.

This training course provided an overview of the criminal grounds of removability and inadmissibility under the Immigration and Nationality Act. During this training, Mr Gihon explained the definition of a “conviction” for immigration purposes and how convictions under many different Florida Statutes can lead to serious immigration consequences. He explained how different criminal sentences can effect non-citizens differently, depending on their immigration status. Mr. Gihon also provided some practical and tactical advice for how to limit or remove the most serious possible immigration consequences of certain criminal convictions.

Lasnetski Gihon Law help a Lawful Permanent Resident remove an Aggravated Felony Conviction

Published on: August 27, 2014 | by Lasnetski Gihon Law

Last week, the experienced criminal and immigration attorneys at Lasnetski Gihon Law helped a client remove a criminal conviction that made him an aggravated felon. A prior criminal defense attorney did not advise the client, who is a lawful permanent resident, that entering a plea to a crime of violence with a two year prison sentence would make him an aggravated felon and almost guarentee his deportation from the United States.

The client is currently in removal proceedings and attorneys from the U.S. Immigration and Customs Enforcement (ICE) have opined that our client had no relief from removal because of the aggravated felony conviction. Attorneys from SLG negotiated with the prosecutors and convinced the criminal judge that our client’s rights were violated when he was not clearly advised that his conviction would all but ensure his removal from the United States. Now that SLG helped him change his conviction to something that is not an aggravated felony, our client will have relief from removal, and may be able to stay here in the United States with his family and avoid deportation.

This is another success story about how SLG can help non-citizens whose rights were violated in the criminal justice system. If you are not a citizen and you are currently being prosecuted for a crime in Florida, call us today so we can represent you in criminal court and protect your immigration rights. Do not rely on a public defender or criminal defense attorney who does not know immigration law to protect your immigration status.

I was convicted for a crime, but my attorney never told me I would be deported, what do I do now?

Published on: August 21, 2014 | by Lasnetski Gihon Law

This is a common occurrence in the state of Florida. Non-citizens are arrested for crimes and they enter pleas to the charges without being told of the probable or possible immigration consequences of their convictions. Many criminal defense attorneys have little or no knowledge of the immigration laws of the United States. So many times, a non-citizen enters a plea in a criminal case, only to find out after that the plea is being used by the U.S. Immigration and Customs Enforcement (ICE) to try to deport them. What should you do if you, a family member or friend is in this position?

The easy answer is to go back in time and hire a criminal defense attorney who has extensive experience and knowledge of immigration law. The more practical answer is to hire an immigration attorney who is also an experienced criminal defense attorney who can try to go back and fix the errors in your criminal case.

Hiring an experienced criminal defense attorney who is also knowledgeable and experienced in immigration law is a non-citizens’ best chance to protect both their rights in criminal court and their immigration status. A criminal attorney with immigration knowledge and experience can make sure that a non-citizen knows the truly clear consequences of any plea to a criminal offense and can explain the probable and possible immigration consequences of any criminal conviction. A skilled and knowledgable criminal attorney can work with the prosecutors to reduce or remove the immigration consequences in a criminal case.

The BIA Issues an Important Decision on Florida’s Sale of a Controlled Substance Statute

Published on: August 19, 2014 | by Lasnetski Gihon Law

On August 15, 2014, the Board of Immigration Appeals issued a published decision in Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014), regarding the immigration consequences of a conviction for violating Florida Statute § 893.13(1)(a)(1) (sale, manufacture, delivery or possession with intent to sell, manufacture or deliver, a controlled substance). With this decision, the Board has made it clear that unless a non-citizen is convicted of actual sale or possession with the intent to sell a controlled substance, a conviction under this statute will not be an aggravated felony for immigration purposes. A conviction for manufacturing, delivering or possession of a controlled substance with the intent to manufacture or deliver, will still be a controlled substance offense, and will make a non-citizen both inadmissible and deportable, but it will not be an aggravated felony.

This is an important distinction because if a non-citizen is convicted of an aggravated felony, they are not eligible for multiple forms of Immigration relief. These forms of relief include: asylum, cancellation of removal for either permanent and non-permanent residents, voluntary departure, and possibly adjustment of status. A conviction for an aggravated felony will also make you subject to mandatory detention if you are detained by immigration, you will not be eligible for to become a citizen if you are a lawful permanent resident. If you are convicted of an aggravated felony and are not a lawful permanent resident, then you may be subject to administrative removal. Administrative removal is what is referred to as a “no-process” removal where officers from Immigration and Customs Enforcement (ICE), and not an immigration judge, decide whether you should be removed from the U.S.

The U.S. Court of Appeals for the Eleventh Circuit issued a published decision in 2013 regarding this same statute. In Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013), the Court stated that there are two ways that the government can prove that a conviction is an aggravated felony under INA § 101(a)(43)(B). The first method is through the drug trafficking crime clause and the second is through the “illicit trafficking” clause. In Donawa, the Court decided that Fla. Stat. § 893, which govern controlled substances, lacks a certain element that makes it impossible to prove that convictions under this statute were aggravated felonies under the drug trafficking crime clause. The Court left open the possibility that a conviction under Fla. Stat. § 893 could still contain a trafficking element and therefore me an “illicit trafficking” offense, and an aggravated felony, pursuant to Matter of Sancez-Cornejo, 25 I&N Dec. 273 (BIA 2010).

If I seal or expunge my criminal record, will that protect my immigration status?

Published on: August 11, 2014 | by Lasnetski Gihon Law

The short answer is no for a sealed record, but likely yes for an expunged record.

If you seal a criminal record, it does not erase it for immigration purposes. Therefore, the Department of Homeland Security (DHS) can still use that criminal record to seek to remove you from the U.S. or bar you from certain forms of immigration relief.

If you expunge your criminal record, that means that although you were arrested or prosecuted, the charges were eventually dropped and you were not convicted. As there is no conviction, it is difficult for DHS to use that criminal record against you. There are a few instances where DHS does not need a criminal conviction for a crime in order to argue that you should be deported because of it. Those circumstances involve crimes related to controlled substance traffickers, controlled substance offenses and crimes involving moral turpitude. In very specific and rare circumstances, DHS can try to deport you if they can prove that you admitted to a criminal offense that involved a controlled substance or a crime involving moral turpitude. This would only apply if you are present in the U.S. without having been admitted or paroled (i.e. without inspection) or if you are an arriving alien (someone at the border trying to come into the U.S.).

Federal Court Gives Hope to Immigrants Fleeing from Violence and Corruption in Central America

Published on: July 22, 2014 | by Lasnetski Gihon Law

The U.S. Court of Appeals for the Fifth Circuit recently issued a decision that gives hope to immigrants around the world fleeing violence and corruption in their home countries. In a decision styled, Garcia v. Holder (case number 13-60381) the federal court rejected a decision by the Immigration Judge and the Board of Immigration Appeals (BIA) that potentially corrupt police officers were not acting “under the color of law,” when they threatened Mr. Garcia with violence and death. The federal court determined that Mr. Garcia may be eligible for protection under Article III of the United Nations Convention Against Torture (CAT).

The Immigration Judge found Mr. Garcia credible when he testified that after he was deported to El Salvador, men dressed as police officers threatened him with death if he did not pay extortion money. During the weeks and months that followed, Mr. Garcia moved his residence in an attempt to avoid harm. However, groups of men continued to follow him and physically abuse him, telling him that he owed them money and needed to pay. Mr. Garcia eventually fled El Salvador, re-entering the U.S. without admission or parole. Immigration officers arrested him and attempted to remove him by reinstating his prior order of removal. Mr. Garcia claimed fear of harm if he was deported again, and his case was sent to the Immigration Court. The Immigration Judge and the BIA rejected his claim for withholding of removal and protection under the CAT. The federal court agreed that Mr. Garcia did not qualify for withholding of removal, but disagreed that he failed to establish a claim for protection under the CAT.

The Immigration Judge and the BIA found that Mr. Garcia could not say for sure that the men who threatened him and were dressed as Salvadoran police were actually police officers. Rather, Mr. Garcia thought they could have been just criminals dressed as police officers. The federal court decided that this distinction did not matter, and Mr. Garcia may still be eligible for protection under CAT. The court focused on the “color of law” analysis and used it to decide that because actual public officials may have been involved in the harm or threatened harm to Mr. Garcia, he could make a legitimate claim under CAT.

Refusing to Honor Immigration Detainers will put Residents at Risk, not Protect Them

Published on: July 11, 2014 | by Lasnetski Gihon Law

Recent news articles across the country highlight the growing trend where cities have begun refusing to honor detainers issued by Federal immigration officers to local jails. These small towns and large metropoli are known as “sanctuary cities.” In these approximately 200 municipalities nationwide, when a person is arrested and put into the local jail, local law enforcement officers will release the person from jail even when Federal immigration officers have sent a written request to the jail to hold the person for a brief time. This written request, know as an ICE (Immigration and Customs Enforcement) detainer or hold, is a request to the local jail to keep the person in custody for no more than 48 hours after they are ready for release. The purpose of this hold is to allow immigration officers time to decide whether or not the person is a non-citizen and in the country in violation of the criminal or civil immigration laws.

The articles largely focus on isolated cases where the detainers where issued against people who turned out to be U.S. citizens, or who were held for more than 48 hours after they should have been released. The articles pinpoint the handful of cases where mistakes were made-not the tens of thousands of cases over the years where the use of these detainers helped to protect the communities where they were honored. In the years that ICE has used these detainers, the cooperation between local law enforcement and Federal immigration officers has led to the identification and removal of tens of thousands of convicted murders, child molesters, violent felons, and drug traffickers.

When local law enforcement or immigration officers make mistakes, and violate a person’s constitutional rights, there should be justice for those harmed. Officers should be disciplined, re-assigned, re-trained or fired. Cities and the Federal government should be held responsible when their officers violate people’s rights. However, to completely refuse to honor immigration detainers, and to release convicted violent criminals, who admit they are in the country illegal, back into a vulnerable and unsuspecting community, doesn’t protect anyone, it puts everyone, including other immigrants, at risk.

Lawful Permanent Residents can be found inadmissible to the U.S. for crimes for which they have not yet been convicted.

Published on: July 9, 2014 | by Lasnetski Gihon Law

In a recent decision, the U.S. Court of Appeals for the Fifth Circuit held that the Government might rely on subsequent convictions to prove that a returning lawful permanent resident (LPR) is applying for admission and is removable from the U.S.

In this case, Maria Luz Munoz was a long-time LPR of the United States. In June of 2010, Ms. Munoz struck another woman with a club in a fight. Ms. Munoz was not arrested immediately for this crime. In December 2010, Ms. Munoz traveled to Mexico for a medical procedure and during her attempt to re-enter the U.S., she learned that she had a warrant for her arrest relating to the June incident. Customs and Border Protection (CBP) Officers did not allow Ms. Munoz to re-enter the U.S. as an LPR; rather, they paroled her into the country for prosecution and turned her over to the local authorities on her arrest warrant. Ms. Munoz was subsequently convicted of the crime. CBP officers then placed her in removal proceedings, arguing that she was inadmissible to the U.S. during her December 2010 entry, as she had been convicted of a crime involving moral turpitude.

Ms. Munoz argued that she was not properly paroled into the U.S. upon her return from Mexico, as she had not yet been convicted, or even arrested for a crime. The Circuit Court determined that the Government properly considered Ms. Munoz an arriving alien and paroled her into the U.S. The Court reasoned that it was enough that the Government believed that she had already committed the crime for them to consider her an arriving alien and to parole her in. Her subsequent conviction for the offense simply confirmed what the Government already believed, that she was inadmissible for having committed a crime involving moral turpitude.

I am not a U.S. Citizen and I have been Arrested for a Crime, do I need to worry about the Immigration Consequences?

Published on: July 7, 2014 | by Lasnetski Gihon Law

The quick and easy answer is YES. No matter what the crime is for which you were arrested, if you are not a citizen of the U.S., you should immediately begin worrying about how that arrest will effect your immigration status. While the immigration consequences of your criminal prosecution may not be the first thing on your mind while you sit in jail for a crime, it needs to be on the top of the list.

As a criminal defendant in jail, the first thing you are likely thinking about is just getting out of jail as soon as possible, no matter the cost or consequences. However, if you are a criminal defendant, in jail or out, who is not a citizen of the U.S. you need to take your time before accepting or making a plea deal in your criminal case.

You many think that a withhold of adjudication with court costs and a fine is a great deal, and it may be for some people. However, if you are not a citizen of the U.S., pleading to any crime can have direct and long-lasting negative effects on your current immigration status, your ability to obtain a lawful immigration status, or eligibility to apply for citizenship.