Immigration and Criminal Law

The Trump administration has made sweeping changes to how immigration laws are interpreted and enforced in the United States. The Florida legislature has adopted a similar stance. This article explains how these changes impact non-U.S. citizens during criminal proceedings.

For non-U.S. citizens, resolving a criminal case requires understanding the potential immigration consequences. For instance, certain convictions might cause an individual to become inadmissible for lawful permanent residence in the United States or even subject an individual to deportation.

Some crimes have enhanced penalties when committed by an illegal alien immigrant. Other crimes are reclassified for sentencing purposes when committed by an illegal alien after an unlawful reentry into the United States.

The Immigration and Nationality Act describes several crimes and types of criminal conduct in terms of which aliens are deportable and which aliens are inadmissible. Being deportable under INA 237 or inadmissible under INA 212 leads to the same result of being subject to removal (deportation) proceedings as provided by INA Section 240.

In fact, 8 U.S.C. Section 1227(a)(2)(A)(1) provides:

“Any alien…[i]nadmissible at time of entry or of adjustment of status…is within one or more of the …classes of deportable aliens.”

Finding a Criminal Defense Attorney and Immigration Issues

If you were arrested for a criminal offense in Hillsborough County, then contact us to discuss immigration issues that might arise in your case.

Contact a criminal defense attorney at the Sammis Law Firm to discuss any arrest or prosecution in the Tampa Bay area involving an individual who is not a United States citizen. We can also help you with an ICE notification, hold, or detainer imposed after the arrest.

Our criminal defense attorneys represent clients throughout the greater Tampa Bay area, including Tampa and Plant City in Hillsborough County, New Port Richey and Dade City in Pasco County, Clearwater and St. Petersburg in Pinellas County, and Bartow in Polk County, FL.

Call (813) 250-0500.

Consequences of Convictions for Immigrants

Certain convictions might cause an individual to be inadmissible for lawful permanent residence in the United States under INA Section 212(a)(2) and 8 U.S.C. Section 1182(a)(2) provides for certain types of aliens who are ineligible for admission or visas.

Many individuals do not realize the consequence of the conviction until after that person files a Form I-485 Application to Register Permanent Residence of Adjust Status with the United States Citizenship and Immigration Services Bureau of the United States Department of Homeland Security.

The Form I-485 allows for an immigration visa to be immediately available at the time of the application, subject to the individual being admissible to the United States for permanent residence.

If the individual has a certain type of criminal conviction, then the Form I-495 Application to Register Permanent Residence or Adjust Status will be denied because the individual is found to be inadmissible to the United States for permanent residence. See Section 212(a)(2) and 8 U.S.C. Section 1182(a)(2).

Convictions Causing Status as a Deportable Alien

With respect to immigration consequences to an alien, the Immigration and Nationality Act defines the term “conviction” under INA Section 101(a)(48)(A) and 8 U.S.C. Section 1101(a)(48)(A). In this context, the term “conviction” includes either a formal finding or judgment of guilt entered by the trial court or any case in which adjudication was withheld under the following circumstances:

• the alien entered a plea of no contest, nolo contender, or guilty;
• the alien has admitted sufficient facts to warrant a finding of guilt; or
• a jury or judge found the alien guilty of the offense; and
• the court has ordered some penalty, form of punishment, or restraint on the alien’s liberty to be imposed.

When determining the “term of imprisonment,” the period of confinement or incarceration announced at sentencing by the court regardless of whether any part of the sentence was suspended.

For example, in Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008) an alien entered a “no contest” or nolo contendere plea to a drug possession crime under Florida law and even though the alien received a withhold of adjudication, the fact that court costs were assessed caused a “conviction” because the imposition of court costs was a form of punishment under federal law.

Immigration Consequences of Drug Convictions

In Catwell v. Attorney Gen. Of The United States (3rd Cir., October 13, 2010) Docket No.: 08-4208, the court found that 120g of marijuana was not a “small amount.” In that case, the petitioner appealed the BIA’s decision to reverse the IJ’s grant of LPR cancellation of removal.

The BIA concluded that a state law conviction for possession with intent to distribute 120.5 grams of cannabis amounted to an “aggravated felony” as defined by 8 U.S.C. Section 1101(a)(43)(B), which rendered Cantwell ineligible for cancellation of removal. Additionally, the BIA decided that Catwell’s conviction did not qualify for any exceptions found in 21 U.S.C. Section 841(b)(4).

On appeal, the Third Circuit held that possession of 120 grams of marijuana for personal use is more than a “small amount” as contemplated by the CSA under 21 U.S.C. § 841(b)(4). Furthermore, the court held that the PA Criminal Complaint to which the Defendant pleaded guilty or nolo contendere is appropriate for consideration under the “modified categorical approach.”

In interpreting the statutory exception’s language, “small amount of marijuana,” the Court concluded that the legislative intent was for the exception to apply to the sharing of small amounts of marijuana in social situations. See United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir. 2008).

The Court even cited Senators’ comments in the congressional record, which discussed an exception applying to only a couple grams of marijuana. The court looked at the existence of the “30 grams of less” marijuana exception to removability under 8 U.S.C. § 1227(a)(2)(B)(i).

Thus the court affirmed the BIA’s decision that the petitioner was not eligible for LPR Cancellation of removal because 120.5 grams of marijuana was not a “small amount of marijuana” for purposes of the exception found in 21 U.S.C. § 841(b)(4).

Read more about the immigration consequences of a conviction for Illicit Trafficking in a Controlled Substance.

Florida’s Criminal Laws Involving an Illegal Alien Immigrant

Voting by an Illegal Alien Immigrant

Section 104.15, F.S., prohibits anyone, knowing they are not a qualified elector, to vote at any election willfully. The crime is a third-degree felony punishable by a $1,000 fine and up to five years in Florida State Prison.

Federal law in 18 U.S.C. s. 611 prohibits any illegal alien immigrant from voting in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commission, unless:

• the election is held partly for some other purpose;
• aliens are authorized to vote for such other purpose under a state constitution or local ordinance; and
• voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose but not an opportunity to vote for a candidate for any one or more of such Federal offices.

The crime does not apply if:

• each natural parent, or adoptive parent, is or was a citizen;
• the alien permanently resided in the U.S. before attaining the age of 16; and
• the alien reasonably believed at the time of voting in violation of such subsection that the person was a citizen of the United States.

Any person found guilty of 18 U.S.C. s. 611 faces a fine and imprisonment for not more than one year.

Florida RICO Act Violations by an Illegal Alien Immigrant

The “Florida RICO (Racketeer Influenced and Corrupt Organization) Act” is found in Sections 895.01-895.06.

Under Florida’s RICO statute, the term “racketeering activity” is defined in Section 895.02(8), F.S., to mean committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit any of specified offenses. Those specified offenses include:

• violations of specified Florida laws such as drug offenses, human trafficking, fraud, or kidnapping; or
• any conduct defined as “racketeering activity” under 18 U.S.C. s. 1961(1)

In 2023, the Florida Legislature added the offense of human smuggling to the list of offenses that may constitute racketeering activity as explained in Section 895.02(8)(a)27., F.S.

Section 895.03, F.S., prohibits any person who:

• received, with criminal intent, any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds ;
• received, with criminal intent, the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise’
• acquired or maintained, directly or indirectly, any interest in or control of any enterprise or real property through a pattern of racketeering activity or through the collection of an unlawful debt;
• employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt;
• conpires or endeavors violate any of the previously described activities.

A violation of Section 895.03, F.S., is charged as a first degree felony punishable by up to 30 years in Florida State Prison and a fine of up to a fine $10,000.

The term “unlawful debt” is defined in Section 895.02(12), F.S.,  to mean any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in this state in whole or in part because:

• the debt was incurred or contracted in violation of specified Florida laws; or
• involved gambling activity in violation of federal law;
• involved lending money at a rate usurious under state or federal law.

The term “enterprise” is defined in Section 895.02(5), F.S., to mean any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental, as well as other, entities.

Under Section 874.03, F.S., any criminal gang is included within the definition of “enterprise.”

As explained in Section 895.05(2), F.S., civil liability is created for violations of the Florida RICO Act, including forfeiture to the state of all property, including money, used in the course of, intended for use in the course of, derived from, or realized through conduct in violation of the FICO act. Read more about Florida’s RICO act and civil asset forfeiture proceedings.

Reclassification of Crimes Committed After Unlawful Reentry

The Florida legislature has enacted laws that effectively reclassify a crime from one degree to a higher degree after a conviction. The scheme to reclassify the crime attaches when the charges are filed and must be alleged in the charging document.

In 2024, the Florida Legislature enacted s. 775.0848, F.S., to reclassify the penalty for committing a felony after such a person has been convicted for unlawful reentry by a removed alien pursuant to 8 U.S.C. s. 1326.

Under the statutory scheme, the term “alien” means any person not a citizen or national of the United States as explained in 8 U.S.C.A. 1101(a)(3). The term “removal” is defined in 8 U.S.C.A. 1326(b) as any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either federal or state law.

Section 775.0848, F.S., requires reclassification for aliens who committed the crime after an unlawful reentry as follows:

• a felony of the third degree is reclassified to a felony of the second degree;
• a felony of the second degree is reclassified to a felony of the first degree;
• a felony of the first degree is reclassified to a life felony.

Federal laws prohibiting illegal alien immigrants from reentering the United States are found in 8 U.S.C.A. 1326, which provides that any alien:

• who has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter enters, attempts to enter, or is at any time found in, the United States…shall be fined under Title 18, or imprisoned not more than two (2) years, or both. •
• any alien whose removal was after a conviction for the commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under Title 18, imprisoned not more than ten (10) years, or both.
• any alien whose removal was after a conviction for the commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than twenty (20) years, or both.

This article was last updated on Wednesday, January 29, 2025.