Immigration Consequences of Criminal Charges in Miami

That is why, for a non-citizen, the plea often matters more than the sentence. What you plead to, how the charge is worded, and what the judge orders can decide what happens to your immigration future.

Dennis Gonzalez Law, P.A. is a criminal defense firm. We do not represent people in immigration court. What we do is look at the immigration risk of each possible outcome in your criminal case before you decide anything, and work with an immigration lawyer when your situation calls for one. Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012. Our office answers 24 hours a day, in English and Spanish.

Who This Page Is For

• Green-card holders (lawful permanent residents)
• Visa holders, including students, workers, and visitors
• People with TPS, parole, or another temporary status
• People without immigration status
• People who have applied, or plan to apply, for citizenship
• Families trying to help someone who was just arrested

Every one of these situations is different. The same plea can have very different consequences for two different people.

Why the Plea Matters More Than the Sentence

Federal immigration law has its own definition of "conviction." It does not always match what Florida criminal court calls a conviction.

• A formal judgment of guilt is a conviction for immigration purposes.
• A withheld adjudication can also count. Under the federal definition, even "if adjudication of guilt has been withheld," it is treated as a conviction when (1) a judge or jury found the person guilty, or the person pleaded guilty or no contest (nolo contendere), or admitted enough facts to support a finding of guilt, and (2) the judge ordered some form of punishment, penalty, or restraint on the person's liberty.
• A suspended sentence can still count. When immigration law looks at a "term of imprisonment" or a "sentence," it counts the jail or prison time the court ordered, "regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part."

In plain terms: a withhold of adjudication is not automatically safe for a non-citizen, and the number of days a judge orders can matter even if you never serve them. For some theft and violent offenses, the length of the sentence ordered can decide whether the offense is treated as an "aggravated felony."

Some outcomes may not meet the federal definition of a conviction. Whether yours does depends on exactly what happens in court. That is a question to answer before the plea, not after.

The Categories That Trigger Immigration Consequences

The Immigration and Nationality Act (INA) lists the kinds of criminal cases that can lead to deportation or block a person from getting status. The main categories:

• Aggravated felonies. Despite the name, the federal list includes offenses that are not felonies under Florida law, and offenses that are not violent. The list includes, among others: murder, rape, or sexual abuse of a minor; drug trafficking; firearms trafficking; certain money-laundering offenses over $10,000; a crime of violence or a theft or burglary offense with a term of imprisonment of at least one year; fraud or deceit where the loss to the victim or victims is more than $10,000; and attempts or conspiracies to commit those offenses. An aggravated felony conviction at any time after admission makes a non-citizen deportable.
• Crimes involving moral turpitude. One such conviction can make a person deportable when the crime was committed within five years after admission (ten years for certain people) and carries a possible sentence of one year or longer. Two or more such convictions after admission, not arising out of a single scheme, can also make a person deportable. Whether a particular Florida offense falls into this category is a technical legal question.
• Controlled-substance offenses. A conviction for violating a drug law of any state, the United States, or a foreign country, including a conspiracy or attempt, can make a person deportable. The deportation rule has one narrow exception: a single offense of possessing 30 grams or less of marijuana for one's own use. The rules on entering the country and getting status do not contain that exception. A waiver exists for some of those cases, but the government decides whether to grant it.
• Firearm offenses. A conviction for buying, selling, using, owning, possessing, or carrying a firearm or destructive device in violation of any law, or attempting or conspiring to do so, can make a person deportable.
• Domestic violence, stalking, and child abuse. A conviction for a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment can make a person deportable. So can a court's finding that a person violated the part of a protection order that protects against credible threats of violence, repeated harassment, or bodily injury, even without a criminal conviction.

These are not the only grounds in the INA, but they are the ones that come up most in Miami criminal courts.

Deportability vs. Inadmissibility

Immigration law has two separate sets of criminal rules, and a person can be affected by either one, or both.

• Deportability applies mainly to people who have already been admitted to the United States, such as green-card holders and many visa holders. These rules decide whether the government can seek to remove someone who is already here.
• Inadmissibility decides whether a person can get a visa, be admitted to the country, or obtain certain kinds of status, such as adjustment of status (a green card). These rules can matter for green-card holders who travel, for people applying for status, and for people without status who may become eligible for something later.

The inadmissibility rules can apply even without a conviction. The statute covers a person who is convicted of, or who admits having committed, or admits committing the essential elements of, a crime involving moral turpitude or a controlled-substance offense. It also covers a person the government knows or has reason to believe is or was a drug trafficker. What you say, and to whom, can matter.

Citizenship applications. To become a citizen, a person must show good moral character for a required period. Federal law says certain people cannot be found to have good moral character, including anyone ever convicted of an aggravated felony, and anyone who, during that period, spent a total of 180 days or more in jail or prison as a result of a conviction. A criminal case can delay or end a citizenship application.

ICE Detainers After an Arrest

After an arrest, Immigration and Customs Enforcement (ICE) may lodge an immigration detainer with the jail.

• What it is. According to ICE, a detainer is a request asking the jail to notify ICE before releasing the person, and to hold the person for up to 48 hours beyond the time the person would otherwise be released, so ICE can take custody. The federal regulation describes the hold as not more than 48 hours, excluding Saturdays, Sundays, and holidays. ICE's page adds that the jail may not lawfully hold the person beyond the 48-hour period.
• The standard. ICE states that its policy requires probable cause to believe the person is removable before a detainer is issued.
• It is not a deportation order. ICE states that everyone it encounters is entitled to due process, and that it removes people only under lawful orders.
• In Florida, jails must act on detainers. Florida law requires a law enforcement agency holding someone with an immigration detainer to tell the bond judge about it, note it in the case file, notify the State Attorney, and comply with the detainer's requests once it determines the detainer meets Florida's legal requirements.

What this means for families: posting bond may not mean your loved one comes home. With a detainer in place, release from the county jail can mean a transfer to ICE custody. Before you pay a bond, talk to us. See Bond & Nebbia Hearings.

The Florida Plea Warning — and Why It Is Not Enough

Before a Florida judge accepts a guilty or no-contest plea, Florida Rule of Criminal Procedure 3.172 requires the judge to make sure the defendant understands that, for a non-citizen, the court's finding of guilt and acceptance of the plea, "regardless of whether adjudication of guilt has been withheld," may change his or her immigration status, including deportation or removal from the United States.

The rule also says:

• The judge should tell the defendant to talk to a lawyer about possible deportation consequences if he or she needs more information.
• If the defendant has not discussed those consequences with a lawyer, the judge must, on request, allow a reasonable amount of time to think about whether to go forward with the plea.
• The rule says the warning should be given to every defendant in every case, and the judge must not require a defendant to say what his or her immigration status is when entering the plea.

The judge's warning is general. It does not tell you what your plea will do to your status. That analysis has to happen before you stand in front of the judge. Advising a non-citizen client about the deportation risk of a plea is part of a criminal defense lawyer's job, and we treat it that way.

Why Your Criminal Lawyer and an Immigration Lawyer Should Work Together

Criminal court and immigration court are separate systems with separate rules. A plea that solves the criminal case can create the immigration problem. So before any plea:

1. We learn your immigration history, privately and under attorney-client privilege: how and when you entered, your current status, any past cases, and any pending applications.
2. We analyze each possible outcome: the exact charge, the wording of the plea, whether adjudication is withheld, and the sentence the judge would order.
3. We bring in immigration counsel where needed, so the criminal strategy and the immigration strategy point in the same direction.
4. We negotiate with your immigration exposure in mind. Sometimes the better result is a different charge, different wording, or a different sentence structure, not just a lighter sentence.
5. We fight the case when no plea is acceptable. Defenses, motions to suppress, and trial are always on the table.

There are no guarantees in criminal court or in immigration court. What we promise is that the immigration question gets asked, and answered as carefully as possible, before you decide.

What to Do If You or a Family Member Is Arrested

1. Do not plead to anything until a lawyer has looked at the immigration consequences. Not at first appearance, not at arraignment.
2. Do not discuss your immigration status or the facts of the case with police or other inmates. Ask for a lawyer.
3. Gather documents: green card, visa, passport, TPS or parole papers, notices from immigration, and any past court records.
4. Before paying a bond, ask whether there is an immigration detainer.
5. If there is a warrant, plan the surrender. See Self-Surrender.
6. Call us. Our office answers 24 hours a day. Call (305) 209-0384.

Charges Where Immigration Risk Comes Up Often

• Drug charges, including simple possession. See Drug Crimes Defense.
• Domestic violence and protection-order cases. See Domestic Violence Defense.
• Theft, shoplifting, and burglary. See Theft Defense.
• Fraud cases, especially when the claimed loss is over $10,000. See Fraud Defense.
• Firearm charges and violent offenses.

See all of our Criminal Defense practice areas.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

You can read about some of our past cases on our Results page.

Frequently Asked Questions

Do you handle immigration court cases?

No. We are a criminal defense firm. We analyze the immigration risk of the outcomes in your criminal case and coordinate with immigration counsel when your situation calls for it.

I got a withhold of adjudication. Does that protect my immigration status?

Not necessarily. Under federal immigration law, a withheld adjudication can count as a conviction when there was a plea or finding of guilt and the judge ordered some form of punishment, penalty, or restraint on liberty.

The judge warned me about deportation and I still pleaded. Is it too late?

It depends on the case. Talk to a lawyer as soon as possible. Fixing a plea after the fact is usually much harder than getting it right before.

My family member has an ICE detainer. Should we post bond?

Talk to us first. A detainer asks the jail to notify ICE before release and to hold the person so ICE can take custody, and Florida law requires jails to act on detainers that meet its requirements.

I have a green card. Can a misdemeanor affect me?

It can. Some immigration consequences depend on the type of offense, not on whether Florida calls it a felony or a misdemeanor.

I'm undocumented. Does any of this matter if I have no status to lose?

Yes. A conviction or an admission can block a person from getting status later, and an arrest can lead to an ICE detainer.

Do I have to tell the judge my immigration status when I plead?

No. Florida's rule says the judge must not require you to disclose your legal status in the United States when you enter a plea.