Articles Posted in Criminal Convictions

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.

Last month I had the honor of speaking at the Florida Public Defender Association’s 30th Annual “Trial with Style Conference” in unfortunately rainy Fort Lauderdale. While in one of my former lives as a state prosecutor and I like to think I always tried my cases with style, during this conference I did not talk about anything specifically to do with trying a case.

My topic was “Crimmigration: the intersection of Criminal and Immigration Law.” Let me preface this piece with the following caveat; not all immigrants are criminals (sorry Donald Trump) and recent research has shown that foreign-born residents are less likely to commit serious and violent crimes than native-born citizens.

That being said, this subject is of great interest to most criminal defense attorneys in Florida. Florida has the fourth-highest foreign-born population in the U.S. Almost 20% of all residents in Florida were born in another country. Because Florida is now the third largest state with a total population of over 20 million, that means we have roughly four million foreign-born people living in Florida. Florida is also top 10 in the country in crime rate. You combine all of these factors, and you see why criminal defense attorneys need to know immigration law.

Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here are the summaries of the District Court Cases for Alabama, Georgia and Florida. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

District Court Decisions

Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here are the summaries of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

11th Circuit Cases:

There is a bill currently pending before Florida Senate that seeks to increase the maximum punishment for certain crimes committed by “illegal immigrants.” You can read the text of Senate Bill 150 here:

http://www.flsenate.gov/Session/Bill/2016/0150/BillText/__/HTML

Thankfully, there is no companion bill in the House. At first glance, many Floridians may think, “good, if someone is here illegally and commits a crime, they should face higher penalties.” But that gut reaction is wrong in this case, as the devil is always in the details. If you know anything about immigration law or have been following the protracted fights between the Obama administration and the federal courts over immigration, you know that the Federal Government and Federal Courts have a hard time interpreting and administering federal immigration laws themselves. What this bill proposes to do is to impose upon the Florida courts, prosecutors and criminal defense attorneys the additional time, financial and legal burden of determining the immigration status of a person before, during and after they commit a crime. This is much easier said then done.

Finding yourself in handcuffs and under arrest is a traumatic experience for everyone. Many thoughts run through your mind, where will they take me, will I be able to get out of jail, can I afford a criminal defense attorney? One thought that should also be at the forefront for everyone arrested who is not a U.S. citizen is, how will this arrest affect my immigration status and will I be deported?

For non-citizens who are arrested, hiring a criminal defense attorney is just the first step in protecting your rights. While criminal defense attorneys in both state and federal court are charged by the U.S. Constitution with providing accurate immigration advice to their clients, in reality, this often does not happen. Criminal defense attorneys are often unable to give accurate immigration advice because they do not practice immigration law and have no idea what the effects of a given criminal charge will be for a client.

This is true because the criminal aspects of immigration law, or crimmigration is a very nuisanced, complicated, ever-changing and inconsistent area of law that even the most experienced immigration attorneys are often fearful of practicing. If immigration attorneys don’t know the immigration consequences of criminal prosecutions, how can your criminal defense attorney be expected to know them?

This Friday and Saturday, October 16th & 17th, the Central Florida Chapter of the American Immigration Lawyers Association (AILA) will host its 2015 Annual Immigration Law Conference in Orlando. This conference will feature leading immigration experts from across the United States and a sitting U.S. Congressman. The venue is the beautiful Omni Champions Gate Resort.

SLG has the honor of having two of its partners, Jeremy Lasnetski and John Gihon, selected to be panelists at the conference.

Jeremy was chosen to be the discussion leader on the U.S. Citizenship and Naturalization panel. This panel will cover topics including the acquisition of citizenship by birth abroad, derivation of citizenship through a naturalizing parent and the requirements and procedure for naturalization.

Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here is an excerpt of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

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