Miami Crimmigration Defense Lawyer

Why a Standard Criminal Defense Is Not Enough

In Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court held that defense counsel must advise a non-citizen client about the deportation consequences of a plea. Florida goes further in form but not in substance: Florida Rule of Criminal Procedure 3.172(c)(8) requires the judge to warn every defendant that a plea may subject them to deportation. That warning is generic. It does not tell you whether your specific plea, to your specific statute, with your specific sentence, will trigger removal. Only an analysis of the charge against the Immigration and Nationality Act can answer that.

The controlling federal grounds are:

• Deportability, INA § 237(a)(2), 8 U.S.C. § 1227(a)(2): applies to people already admitted, including green card holders. It covers crimes involving moral turpitude, aggravated felonies, controlled substance offenses, firearm offenses, and crimes of domestic violence.
• Inadmissibility, INA § 212(a)(2), 8 U.S.C. § 1182(a)(2): applies to anyone seeking admission or a green card. A single crime involving moral turpitude can bar adjustment of status, and unlike deportability, an admission of the essential elements of an offense can be enough even without a conviction.
• Aggravated felonies, INA § 101(a)(43), 8 U.S.C. § 1101(a)(43): the most damaging category. An aggravated felony conviction bars cancellation of removal, asylum, and most waivers, and it subjects a lawful permanent resident to mandatory detention.

Florida Pleas That Cause Immigration Problems

• A withhold of adjudication still counts

  Florida judges routinely withhold adjudication under Fla. Stat. § 948.01, and defendants often believe this means they were never convicted. Immigration law disagrees. Under INA § 101(a)(48)(A), a "conviction" exists whenever a person pleads guilty or no contest and the court imposes any punishment or restraint, including probation or court costs. A no contest plea to possession of cocaine under Fla. Stat. § 893.13 with a withhold and six months of probation is a controlled substance conviction under INA § 237(a)(2)(B)(i), and it makes a green card holder deportable. Pretrial diversion completed before any plea is entered, by contrast, generally produces no conviction at all. The difference between those two paths can be the difference between staying and being removed.

• One day on the sentence can create an aggravated felony

  Theft is an aggravated felony under INA § 101(a)(43)(G) when the term of imprisonment is at least one year, and a suspended sentence counts as imposed. Consider a petit theft or third-degree grand theft charge under Fla. Stat. § 812.014. A plea with a 365-day suspended sentence is an aggravated felony conviction. The identical plea with a 364-day sentence is not. The client serves the same time either way, but the first version strips him of eligibility for cancellation of removal and nearly every other defense. Negotiating that single day is a core crimmigration task, and prosecutors in Miami-Dade will often agree to it when defense counsel raises it before the plea, not after.

• Drug and domestic violence offenses

  Any conviction relating to a controlled substance triggers deportability, with one narrow exception for a single offense of simple possession of 30 grams or less of marijuana for personal use. A conviction for battery under Fla. Stat. § 784.03 against a spouse or household member can qualify as a crime of domestic violence under INA § 237(a)(2)(E)(i). Even a civil injunction violation can carry consequences under the same section. In these cases the goal is often to restructure the plea to a statute that does not match the federal ground, such as a plea that does not identify the substance or that removes the domestic relationship from the record of conviction.

Fixing a Conviction That Already Happened

If you took a plea without proper advice about deportation, Florida law provides a remedy. A motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 may vacate the conviction where counsel failed to give the advice Padilla requires. The deadline matters: Rule 3.850(b) gives you two years from the date the judgment and sentence become final, with limited exceptions such as newly discovered facts that could not have been found earlier with due diligence. A conviction vacated for a legal defect in the proceedings no longer counts under immigration law. A conviction vacated purely to avoid immigration consequences, without a legal basis, still counts. The motion must be built correctly from the start.

When ICE Gets Involved: Detention and Removal in Miami

Miami-Dade corrections facilities honor immigration detainers, so many non-citizen defendants are transferred to ICE custody at the Krome Service Processing Center after their criminal case ends, or even while it is pending. Whether release on bond is possible depends on the conviction. Under INA § 236(c), certain convictions, including most controlled substance offenses and aggravated felonies, require mandatory detention with no bond hearing at all. This is another reason the plea itself must be structured with immigration law in view: it can decide whether your family posts a bond or you fight your case from Krome.

Once removal proceedings begin, the case moves to the Miami Immigration Court, starting with a scheduling hearing where you enter pleadings to the government's charges. You can read about that stage on our page for the Miami master calendar hearing, and about the defense process as a whole on our deportation and removal defense page.

Relief That May Survive a Criminal Record

A conviction does not always end the immigration case. Depending on the offense and your history, options may include:

• Cancellation of removal for lawful permanent residents, INA § 240A(a): available if you have held a green card for five years, resided continuously in the United States for seven years after admission, and have no aggravated felony conviction. The seven-year clock stops at the commission of certain offenses, which is why the date of the offense, not just the conviction, must be analyzed.
• Waivers of inadmissibility: some criminal grounds can be waived when a qualifying relative would suffer extreme hardship. See our page on the I-601 waiver of inadmissibility.
• Protection-based relief: applicants who fear persecution may still qualify for withholding of removal even when a conviction bars asylum, unless the offense is a particularly serious crime.

What We Do in a Crimmigration Case

We analyze the charging document and the Florida statute against the INA before any plea discussion begins. We negotiate with the prosecutor for a plea structure, a substitute charge, a sentence length, and a factual basis that avoid the federal grounds of removal where the evidence allows it. Where a bad plea has already been entered, we evaluate a Rule 3.850 motion within the two-year window. And when removal proceedings begin anyway, we defend the case in the Miami Immigration Court with the record we helped build.

Arrested in Miami and Worried About Your Immigration Status?

We review your charge, your immigration history, and the proposed plea before you sign anything, and we tell you exactly what each outcome would do to your status. If ICE has placed a detainer or you are already at Krome, we move for bond where the law allows it and prepare your defense in immigration court. Contact our Miami office for a case-specific consultation.

You can contact the Law Offices of Albert Goodwin by phone at 786-522-1411 or by email at [email protected].