Jacksonville Criminal Lawyer Blog
If you have been charged with a crime in Florida, or any other state, and you are not a United States citizen, you may be at risk of suffering immigration related penalties, such as deportation, as well as the normal criminal penalties. If your criminal defense lawyer is not familiar with immigration law, he/she may not know to advise you of the immigration ramifications of your criminal case or may not be sufficiently familiar with the immigration laws to properly advise you of what the immigration risks are of a guilty or no contest plea or a guilty verdict at a trial in the criminal case.
In 2010, the United States Supreme Court decided the case of Padilla v. Kentucky. The Padilla case held that criminal defense lawyers are required to advise criminal clients who are not U.S. citizens that a guilty or no contest plea may have negative immigration consequences. Of course, many criminal defense lawyers are not qualified to provide specifics as to how the immigration process works and what those negative immigration consequences are likely to be. Therefore, it is very important to contact a law firm that is experienced in both criminal law and immigration laws, as we are.
What happens if a noncitizen enters a guilty plea or a no contest plea to a criminal charge without being properly advised that there may be adverse immigration consequences, such as deportation? Since 2010, the law has provided that the person may have a right to go back and withdraw his/her guilty or no contest plea and fight the criminal charges or try to work out a better plea deal that would not likely have negative immigration consequences.
However, one question that remains unanswered is whether the duty of the criminal defense attorney to advise clients of the immigration consequences of a guilty or no contest plea in a criminal case is retroactive. In other words, if a noncitizen had a case prior to 2010, when the Padilla case was decided, and his/her criminal defense lawyer did not advise him/her of the negative immigration consequences of the plea, can that person go back and withdraw the plea? Some courts in Florida have held that the Padilla case is not retroactive, which means noncitizens who were not properly advised about immigration issues prior to Padilla cannot use the Padilla case to go back and withdraw their guilty or no contest pleas. Other courts in other states have held the opposite. The issue has not been ultimately decided in Florida.
It is certainly possible that this is a question that will need to be decided by the Florida Supreme Court.
In any case, if you had a criminal case and plead guilty or no contest and now face possible immigration consequences, feel free to contact us to discuss your immigration status and the possibility of going back to challenge your criminal case. If you currently have a case pending and are concerned about the immigration consequences of your criminal case, contact us to fully understand how a criminal case can affect your immigration status.