Articles Posted in Criminal Convictions

Consider this:  You are a Lawful Permanent Resident who has lived in the United States for nearly your entire life.  You have always been in the United States legally.  One day, you get arrested for a crime you did not commit.  Or maybe you did violate the law, but it was a very minor charge and you have never been in trouble before.  Like so many United States citizens in the same situation, you are offered a pretrial intervention program.  That is, the prosecutor diverts your case from the court system, has you perform some community service, pay some fines, maybe take a class, and if you complete all of the requirements, they drop the charges.  Under the laws of the State of Florida, you would even be able to get the charge expunged from your record.  After all, the law in this land of opportunity is set up to give people second chances when they make a mistake.  So, you enter the pretrial diversion program, do everything you were asked to do, successfully complete it, and the charges are dropped.  All is well, right?

Well, not according to the Board of Immigration Appeals (BIA).  In a recent decision, the Board of Immigration Appeals held that even if a case is referred to a pretrial diversion program and ultimately dropped, it can serve as a conviction for immigration purposes and be used as the basis for deportation.  What? How can that be? Here is the thought process:

What is the definition of a “conviction” for immigration purposes? 

Violation of an Injunction for Protection is a landmine for non citizens.  If you, or a loved one, is not a United States citizen and have been served with an injunction or charged with violating an injunction, call an experienced immigration attorney for a consultation.  Here’s why:

The Immigration and Nationality Act includes a provision that makes a non-citizen deportable if they have an injunction for protection (aka restraining order) against them and the court determines that person violated the injunction by engaging in the conduct the injunction was meant to prevent.  INA §237(a)(2)(E)(ii)

What is an Injunction for Protection?

Typically, if the government is going to institute deportation proceedings on the basis of a criminal charge, there must be a conviction.  In immigration court, the term “conviction” is interpreted very loosely.  For example, in the State of Florida, if a person receives a “withhold of adjudication,” they are technically not convicted, even though they have pled no contest or guilty and receive some form of punishment.  However, in immigration court, a withhold of adjudication would serve as a conviction sufficient to form the basis of a removal order.  This has been pretty well established in the immigration law community for some time.  What hasn’t been established is whether a person can be deported when there has been no formal conviction in criminal court, but the non-citizen admits to the elements of the offense before a criminal law judge.

The Fourth Circuit has recently spoken on this issue in Boggala v. Atty Gen’l, No. 16-1558 (4th. Cir. 2017).  Vijaya Boggala, a citizen of India, was arrested for solicitation of a minor.  He entered into a deferred prosecution agreement with the state.  A deferred prosecution agreement is basically front loaded probation.  It is an agreement to complete certain conditions (i.e. probation, counseling, etc.) and the state agrees to drop the charges upon successful completion of those conditions.  In this case, Mr. Boggala was required to admit to elements of the offense in open court before a judge, which he did.  He then successfully completed all the conditions of his deferred prosecution agreement and the charges against him were dropped.  You wouldn’t think that he would be subject to deportation, right?  After all, the charges were dropped.  Despite not being convicted of the crime, the Department of Homeland Security (DHS) instituted deportation proceedings against Mr. Boggala. They charged him with being deportable under INA Section 237(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and under INA Section 2237(a)(2)(A)(i), as an alien convicted of a crime involving moral turpitude.  The question presented to the Fourth Circuit was whether Mr. Boggala was “convicted” of the offense as that term is interpreted under the Section 237(a)(2) of the Immigration and Nationality Act.

Section 101(a)(48)(A)(i) of the INA defines “conviction” as a “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where…the alien… has admitted sufficient facts to warrant a finding of guilt.”  The Fourth Circuit thus analyzed whether Mr. Boggala admitted sufficient facts to warrant a finding of guilt and not whether the court actually made a finding of guilt.  The Court found that because Mr. Boggala stipulated to the facts that were to be used against him, he was convicted within the meaning of Section 101(a)(48)(A)(i), despite not having been convicted in criminal court.


Any criminal arrest or conviction will have some negative consequence for a non-citizen.  Whether it is prolonged delay at the border while Custom and Border Protection (CBP) agents ask you questions, whether you are denied a bond in immigration court, whether you are denied the right to become a United States citizen or whether you are placed in deportation proceedings, criminal charges are bad.  Some criminal cases will have more severe consequences than others.  When it comes to the worst possible criminal conviction you can have, Aggravated Felonies are at the top of that list.


Aggravated Felonies are bad!  Real bad.  They are referred to in many different provisions of the Immigration and Nationality Act.  They almost always will result in deportation.  They prevent a person from ever becoming a United States citizen.  And they preclude you from obtaining almost all forms of relief in immigration proceedings.

Deferred Action for Childhood Arrivals (“DACA”) has been a saving grace for countless people who have no other form of relief from deportation.  DACA is available to people who came into the United States without “admission,” when they were children.  In its simplest form, it is a declaration by the government that they will not institute deportation proceedings for a specified period of time.  The practical benefits to the individual are that the person becomes eligible for certain benefits, like a driver’s license and employment authorization, and they don’t have to look over their shoulder and worry that they are going to be taken into ICE custody.

In order to be eligible for DACA, you must meet the following requirements:

  1. Were under the age of 31 as of June 15, 2012;

Criminal defense lawyers don’t typically know anything about immigration law.  Immigration law is federal.  Most criminal defense attorneys practice only state law in state courts.  Even if they do practice in federal criminal courtrooms, it is a completely different area of law from immigration.  Asking a criminal lawyer about immigration law is kind of like asking a podiatrist about cataracts.  That is unless the lawyer practices in both fields, which is becoming more common.  The problem is that when you ask a lawyer about an area of law they don’t know anything about, they may give you an answer.  “Uh, I’m sure this conviction won’t hurt you.  You’ve been here 30 years.  You have a greencard.  Don’t worry about it.”  And that answer may not only be wrong; it may be dead wrong with deadly consequences.

Case in point – Jae Lee is going before the United States Supreme Court because his criminal defense attorney told him that his plea to Possession of a Controlled Substance with Intent to Distribute would not make him deportable.  Not only did it make him deportable, it is considered an aggravated felony and he has no form of relief to prevent his deportation.  His criminal defense attorney’s nonchalant dismissal of such a critical issue has led to a lifetime of catastrophic consequences for Mr. Lee, including being incarcerated for seven years while he fights his deportation.  If you’d like to learn more about Mr. Lee’s case, check out this wonderful article written by Manny Vargas from the Immigrant Defense Project.  Mr. Vargas provides a very detailed history of Mr. Lee’s case and discusses exactly how Mr. Lee went from thinking his criminal conviction would not lead to deportation to realizing he would not only be deported, but would be detained for many years while fighting that deportation.

Don’t get me wrong.  Many criminal defense attorneys do an amazing job of actually looking at the immigration statutes, calling up immigration lawyers, and sending their clients to immigration lawyers.  But many do not.  So, you should trust your criminal defense attorney, but verify.  Trust, but verify.  Ask your lawyer if they have any experience in immigration law.  Go seek the advice of an immigration lawyer. The consequences are too severe for you to leave it in the hands of an attorney who may view the immigration consequences as a collateral consequence of the plea, rather than a potential life shattering experience.

Just like American citizens, sometimes immigrants find themselves on the wrong side of law. Whether its a DUI or possession of a small amount of marijuana, even the most minor criminal offense can have devastatingly negative immigration consequences for non-citizens.

Can a lawful permanent resident be deported for a DUI? The answer is no, however, that DUI combined with other criminal arrests and convictions can make USCIS deny a green card holder’s application for citizenship. Can a DUI make someone with no status deportable? Again, the answer is no, but a DUI will stop someone from getting DACA (Deferred Action for Childhood Arrivals) and other forms of Prosecutorial Discretion.

The crime that is much worse for both lawful permanent residents and for immigrants with no status is possession of any controlled substance, even a small amount of cannabis for personal use. For an immigrant with no status, a conviction for any federally controlled substance in any amount will likely lead to detention, removal proceedings and bar almost all forms of relief from removal. Yes, this includes a misdemeanor amount of cannabis for personal use.

The Board of Immigration appeals recently issued a published decision that may answer once and for all with a resounding NO, the question: “is Battery in Florida a Crime of Violence?” That’s right, the Florida crime of Battery, Florida Statute § 784.03, which requires that someone actually and intentionally touch or strike another person or intentionally cause bodily harm to that person, is probably not a crime of violence in immigration law. That means that it is probably never an aggravated felony crime of violence under INA § 101(a)(43)(F), and may never be a crime of domestic violence under INA § 237(a)(2)(E)(i).

This decision also means that other more serious Florida battery crimes, including Felony Battery based upon a prior Battery Conviction, Fla. Stat. § 784.03(2), Aggravated Battery on a Pregnant Victim, Fla. Stat. § 784.045(1)(b), Battery on a Law Enforcement Officer, Fla. Stat. § 784.07, and Battery on a Elderly or Disabled Person, Fla. Stat. § 784.08, are all likely not crimes that can get you deported. That is because each of these crimes is based upon the same language from the simple battery statute.

A bit of background on the statute first so that you can understand the history of the changes in the law effecting the battery statute. In 2010, the U.S. Supreme Court in a case called Johnson v. United States, 130 S.Ct. 1265 (2010), determined that the first part of Florida’s battery statute, the part about touching another person against their will, is not a crime of violence. That is because you can be convicted of battery in Florida without actually using any violent physical force to commit the crime. Rather, you can simply touch someone against their will.

As I sit here working on my most recent crimmigration consultation case, I realize more and more the need for non-citizens to have trusted advice and immigration counsel during their criminal cases. I have mentioned on many occasions that the time to hire an immigration attorney is not after you or your loved one is convicted of a crime, but before. The case I am working on now is but another example.

A loved one of my client called to ask, “what are the immigration consequences of this criminal prosecution?” She said that his criminal defense attorney had someone in his office who did immigration and could assist, but she chose to call us for a crimmigration consultation because she read my blog and knew I could help. She was right. This nice young lady had received all kinds of incorrect advice regarding the criminal prosecution of her loved one.

She was told that pre-trial diversion or pre-trial intervention was the way to avoid deportation. She was told that drug court was a terrible idea because her loved one would be labeled an “addict” and deported for that. Thankfully she was savvy enough to research and find out that it didn’t matter if her loved one received a withhold of adjudication or an adjudication of guilt, both are considered convictions for immigration purposes.

The answer is clearly and unequivocally YES. Many people who are not yet citizens think that if they are arrested for a crime and the State or Government drops the charges, for any reason, they are home free and immigration officials can never use that arrest against them in the future. That is simply not true.

There are multiple grounds of inadmissibility that do not require a conviction in order for the government to use them against you. You may be thinking, I am in the U.S. lawfully, I don’t care about grounds of inadmissibility, those are for people who are here illegally or people just coming into the U.S. That’s not true either. Those grounds of inadmissibility, which do apply to people who entered without admission and those who are applying to come into the U.S., also apply to people trying to adjust their status to lawful permanent resident and get a green card.

Yes, that’s right, if you are a non-immigrant, visitor, student, employee, or in any other lawful immigration status and you want to get your green card, you have to pass all the same admissibility requirements that people coming in from overseas have to pass.

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