When someone who’s not a U.S. citizen is accused of a crime, that person’s immigration status is in jeopardy. A noncitizen can be removed from the United States by deportation or denied entry by inadmissibility.
The U.S. Supreme Court recently held that any noncitizen charged with any crime must be advised by counsel of the immigration consequences of a guilty plea, whether it is a misdemeanor or a felony. Failure to advise a client of these consequences amounts to incompetence of counsel.
Crimes that trigger deportation generally fall into certain categories:
- Controlled substance offenses except one offense for a small personal amount of marijuana or paraphernalia
- Crimes involving moral turpitude where the potential sentence is one year or longer
- Aggravated felonies
- Destructive device and firearms convictions
- Espionage, sabotage, treason, sedition, trading with an enemy state, expedition against a friendly state or threats against the U.S. president
- Domestic violence, stalking, child abandonment or neglect, child abuse
- Failure to register as a sex offender
- Violation of a protective order
Allegations of these crimes and others, including prostitution, money laundering, international child abduction, polygamy, and terrorism, trigger inadmissibility for future visits. In certain cases, the U.S. Immigration and Customs Enforcement (ICE) agency makes its decision based on the noncitizen’s conduct alone and no conviction is required.
As part of the Rules of Criminal Procedure, Florida now requires that criminal defendants be advised of the potential immigration consequences of pleading guilty as part of the plea process [ Fla. R. Crim. P. 3.172(c)(8)].
The Florida Supreme Court has held that anyone who pleaded guilty without being told the conviction carries immigration consequences could file a motion to set aside the conviction and withdraw the plea. The court held that these motions could be filed within two years of discovering there are deportation consequences rather than within two years of the conviction.
If you face deportation or inadmissibility due to a criminal allegation, you may be able to have the conviction set aside, depending on your circumstances. You should consult with experienced and skillful criminal defense attorneys to understand your options.