Recent Crimmigration Decisions can Affect Every Non-U.S. Citizen Accused of a Crime in Florida

In the past couple of weeks, multiple courts, including the Board of Immigration Appeals, the Eleventh Circuit Court of Appeals and even the U.S. Supreme Court have issued decisions which will have an effect on thousands of non-U.S. citizens facing criminal prosecutions in Florida. Non-citizens in criminal court face not only the prospects of jail, prison, probation and a loss of civil rights, but also of the possibility of being deported or never being able to obtain the U.S. citizenship. Crimmigration is the area of law that helps to protect non-citizens’ immigration status in criminal court and to defend non-citizens facing deportation for their criminal histories. Here are some of the recent crimmigration decisions that will come into play for Florida non-citizen criminal defendants.

In Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015) the Board held that Fla. Stat. § 784.041(1) (felony battery) is categorically a crime of violence under 18 U.S.C. § 16(b). The Board confirmed that when analyzing a criminal statute to determine if it is a crime of violence under 18 U.S.C. § 16(b), the Board uses an “ordinary case” not “minimum conduct” analysis. The Board distinguished cases analyzed under 18 U.S.C. § 16(a) (element-based) which uses a minimum conduct approach. The proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”

In U.S. v. Keelan, No 13-11878 (11th Cir. 2015), a very similar decision to the Board’s holding in Matter of Francisco-Alonzo, the Eleventh Circuit held that when analyzing a criminal statute to determine if it is a crime of violence under 18 U.S.C. § 16(b) the Board uses an “ordinary case” analysis. Of importance in Keelan is that the Court noted that in cases involving sex crimes against minors there is always a substantial risk that physical force will be used, therefore supporting a finding that any crime involving sex abuse of a minor is likely to be a crime of violence under 18 U.S.C. § 16(b).

The U.S. Supreme Court also chimed in with its decision in Mellouli v. Lynch, 575 U.S. _____ (2015). In this decision, the Court ruled that when a specific state’s controlled substance schedule includes substances that are not on the federal schedule, a conviction for possession of drug paraphernalia where the specific substance is not referenced in the conviction documents cannot support an INA § 237(a)(2)(B)(i) charge (conviction for a controlled substance offense). The Court held that because the Kansas controlled substance schedule was broader than the Federal schedule, Mr. Mellouli could have been convicted of possessing drug paraphernalia related to a non-federally controlled substance and INA § 237(a)(2)(B)(i) only relates to federally-controlled substances.

The experienced crimmigration attorneys at SLG Law, can help you navigate the perils of being a non-citizen in Florida’s criminal courts. Our attorneys can also help your criminal defense attorney protect your immigration status and help defend you against deportation.

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