Window closing for aliens with Florida criminal convictions to move to withdraw pleas that could leave them vulnerable to adverse immigration actions

Author: Tomislav D. Golik
Attorney, Leimbach & Sharma

Under the Immigration and Naturalization Act (INA) convictions for certain categories of crimes carry with them the risk that the alien defendant may face removal proceedings or inadmissibility to re-enter the United States.  Under U.S. law, “convictions” are defined to include pleas of guilty or nolo contendere (no contest).  Even criminal offenses which have been pardoned or expunged are still considered convictions for immigration purposes.

Until 2006, the Florida Supreme Court held that an alien who was actually threatened with deportation as a result of a plea of guilty or no contest had two years to move to set aside their plea.  Further, that two year period did not begin to run until the alien first learned, or should have had knowledge of, the threat of deportation based on the plea.

That changed on October 26, 2006, when the Florida Supreme Court ruled in State v. Green that the two year limitations period starts to run from the date the judgment and sentence become final.  In the interests of fairness, however, the court further ruled that the Green decision would not apply retroactively.  Any alien whose criminal case was finalized prior to October 26, 2006, still had the two year period to file for post conviction relief from their plea.  That window closes on October 26, 2008.

If you are an alien who entered a plea of guilty or no contest to a crime in the State of Florida, you should contact an attorney immediately to see if your plea could subject you to deportation proceedings.  This is especially true of those who entered pleas to felonies, but there are many criminal offenses classified as misdemeanors that could also serve as grounds for removal of a resident alien or visa holder.  It is not always clear from the language of the INA which crimes could subject an alien to deportation.  Consult an attorney that understands grounds for deportation and inadmissibility to make sure you understand the consequences of your criminal plea.

Even if you no longer reside in Florida, a criminal plea entered there may still subject you to deportation.  If you find that your Florida plea can subject you to deportation, you still need to determine whether grounds exist for challenging it.  An experienced Florida Criminal Defense Attorney can help determine whether grounds exist for moving to withdraw a plea and how much time remains to do so.  Any person fearing they may be affected by a criminal plea in Florida should contact an attorney immediately, as that attorney may need considerable time to do any necessary research and obtain the appropriate records to review a case. 

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