Florida Immigration Lawyer Blog

Jose, a lawful permanent resident, crosses the border into Mexico to retrieve his nephew, a citizen of Guatemala. Jose attempts to bring his nephew into the United States by using his son’s birth certificate for entry. Jose’s son is a U.S. citizen by birth. Jose is stopped at the border and interrogated by Customs agents. During this interrogation, Jose admits to using his son’s birth certificate to bring his nephew across the border. Jose is then issued a Notice to Appear before an Immigration Judge for a removal hearing. During the hearing, Jose moves to suppress his admission because the Customs agent failed to advise Jose that he had a right to hire a lawyer and that any statement that he made would be used against him in the removal proceedings. Is Jose right?

If Jose were charged with a criminal offense, his statements would be suppressed because the Customs agent violated his Miranda Rights. That is, Jose has a right to remain silent, the right to have an attorney present prior to and during any questioning, and the right to have an attorney appointed to him at no cost, if he can’t afford an attorney.

However, Jose was not charged with a crime. He was charged with being removable from the United States for violating the immigration laws. According to the Board of Immigration Appeals in Matter of E-R-M-F & A-S-M, 25 I&N Dec. 580 (BIA 2011), Jose was not entitled to any warnings until he was “placed in formal proceedings.” In other words, until the Notice To Appear was filed with the Immigration Court, which would be long after he was questioned, he is not entitled to be told that he has the right to an attorney being present, at his own cost, before any questioning.

There were a record number of immigrants deported last year. Many were deported for relatively minor criminal infractions, including driving or driver’s license infractions and DUIs. The government is focusing more and more on deporting those with criminal convictions, including minor criminal convictions. The government deports lawful permanent residents (“greencard holders”) as well as those here unlawfully. This article underscores the importance of knowing what effect a plea of guilty or no contest, even to the most minor criminal offense, will have on an immigrant’s status in this country.

A new ICE memo issued this month advises ICE officials and Government attorneys to use their discretion in seeking deportation for non-citizens. While the memo suggests that the government officials should focus on deporting immigrants with criminal records and a history of immigration violations, it counsels officials to use discretion in which cases to prosecute, paying particular attention to those who have served in the military, those who came to the US when they were children, those with mental or physical disabilities, and others with positive factors. The question remains whether the soldiers on the line, i.e. ICE agents and government attorneys, will adhere to the memo. If you think you, or a loved one, might qualify for prosecutorial discretion, give us a call.

Operation “Cross Check” netted 2,400 arrests last month in a nationwide raid. The operation focused on those with outstanding deportation orders, those who had previously been deported and then returned, and those with past criminal convictions. This story underscores the importance of non-U.S. citizens, even greencard holders, in obtaining immigration assistance before entering a plea to any criminal charge. Even the most minor criminal conviction could be the basis for deportation for a lawful permanent resident. Lawful permanent residents often call our office after entering a plea of guilty to a criminal case and tell us that they believed that the conviction or withhold of conviction would not affect their immigration status only later to be served with a notice to appear charging them with removability. Many have been counseled by their criminal lawyers that there would be no negative immigration consequences. The law is extremely convoluted and complex relating to when and what criminal convictions will lead to removal of non-U.S. citizens. Read more about the raid here.

A 55 year old woman who has lawfully lived in the United States since she was a baby is facing deportation based on a 2001 misdemeanor drug possession charge. ICE conducted a pre dawn raid on her home. She has lived her entire life in the United States and has no ties to Italy, her country of citizenship. Yet, she is subject to deportation based on an old minor criminal conviction. Read more here. Although there may be forms of relief available to her, this story illustrates the importance of taking every criminal charge seriously when you are not a U.S. citizen.

A Minnesota Court of Appeals recently ruled in Campos v. Minnesota, that the Padilla decision should apply retroactively. The Padilla decision was a U.S. Supreme Court case, where the Court held that a defendant who was not advised or was improperly advised of immigration consequences could withdraw his or her previously entered plea of guilty or no contest. The question that lingered after the Padilla decision that courts across the nation have been wrestling with is whether the decision applied retroactively. A defendant generally has a short period of time after their plea to file a motion to withdraw that plea. The Campos Court held that those deadlines do not apply to a Padilla challenge. It remains to be seen how other courts across the nation will address this issue.