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New Florida Case Illustrates need for Immigration Counsel in Criminal Court

A Florida court recently issued a decision that will have wide-ranging effects on how non-citizen criminal defendants approach their criminal cases. This decision makes it clear that every criminal defendant who is not a U.S. citizen should strongly consider hiring or consulting with an experienced immigration attorney before they even contemplate accepting a plea bargain in their criminal case. Of course, a non-citizen criminal defendant can also choose to hire a criminal defense attorney who is also an experienced immigration attorney, but those are hard to find.
In Rosario v. State, the Fourth District Court of Appeals affirmed the denial of Ms. Rosario’s motion for post-conviction relief. Ms. Rosario is an undocumented immigrant who accepted a plea bargain and was convicted of petit theft. Ms. Rosario is married to a U.S. citizen and attempted to obtain lawful immigration status through that marriage, but was denied because of the conviction. The trial court and the appellate court denied her motion finding that because she was in the country without status already, she was facing deportation with or without a petit theft conviction.
This case illustrates the often confusing and complicated world of crimmigraiton. Even though a conviction may not directly lead to a non-citizen being deported from the country, it does not mean that the conviction will not have serious and negative immigration consequences. A criminal defense attorney has two choices when advising a non-citizen client about the immigration consequences of a plea. 1) They have a legal duty to accurately advise them of the consequences when they are truly clear or 2) they can advise the client to consult with an experienced immigration attorney before accepting a plea offer.
Florida and federal law are very clear that a criminal defense attorney must accurately advise a non-citizen criminal defendant of the truly clear immigration consequences of a potential plea in criminal court. Padilla v. Kentucky, 559 U.S. 356 (2010). The courts have accepted that a plea has a truly clear immigration consequence when the plea will subject the non-citizen criminal defendant to deportation as an aggravated felon. Aggravated felon is a term of art in immigration law jurisprudence and it basically guarantees deportation with almost no chance of relief from removal that would allow a non-citizen to stay in the United States. However, it is extremely important to remember that an aggravated felony is not determined by the seriousness of the criminal charge, indeed, even a Florida state court misdemeanor can be an aggravated felony under the right circumstances.
When a non-citizen criminal defendant is faced with pleading to a crime that will make them an aggravated felon, then it is clear that their criminal defense attorney must know that the plea will result in this dreaded designation and must advise the client that their plea WILL get them deported, not may effect their immigration status. But what happens if the criminal defense attorney doesn’t know the plea will make the client an aggravated felon, or worse, they don’t know what an aggravated felony is? This is exactly the problem that every non-citizen criminal defendant faces in criminal court when they do not have the guiding hand of an experienced immigration attorney, one who knows the nuances of Florida criminal law and can properly advise them and defense counsel of all of the immigration consequences of a particular plea offer.
John Gihon is an experienced criminal defense and immigration attorney at Shorstein, Lasnetski & Gihon. Call today for a free consultation to see how we can try to help you protect your immigration status in criminal court and defend you from deportation in immigration court.