8 U.S.C. § 1227(a)(2)(A)(i) (2012) (stating that any alien who is convicted of a crime of moral turpitude and receives a sentence of one year or longer is deportable); 8 U.S.C. § 1229b(b)(1)(C) (2012) (providing that the attorney general can cancel removal under certain circumstances but not if the alien has been convicted under 8 U.S.C. § 1227(a)(2) (2012)).This immigration provision guarantees that the defendant who is convicted of a crime of moral turpitude and receives a sentence of one year or more will be deported. Not every judge or lawyer is aware of the provision. When one is unaware of the law, this is what can occur in a courtroom.

In 2008, Menchaca-Ramirez entered a nolo contendere plea to uttering a forged instrument, driving while license suspended (habitual offender), and several other offenses. He was adjudicated guilty and sentenced to a total of 364 days in jail followed by two years’ probation.

In 2011, Menchaca-Ramirez admitted to violating his probation. The court revoked Menchaca-Ramirez’s probation and sentenced him to concurrent terms of fourteen months’ incarceration on the uttering a forged instrument and driving while license suspended convictions; the sentences on the remaining counts were unchanged.

Thereafter, Menchaca-Ramirez sought to withdraw his admission to violating his probation on the ground that it was involuntary. He claimed that his counsel did not advise him that under the Immigration and Nationality Act, a sentence exceeding one year would aggravate his two convictions for uttering a forged instrument making him deportable with no ability to seek relief.

Menchaca-Ramirez contended that if counsel had informed him he would be ineligible to request relief in removal proceedings he would not have admitted the violation and would have proceeded to trial.

His convictions are for driving without a valid license and uttering a forged instrument. His violation of probation seems to have been another conviction for driving without a valid license. These charges allegedly are related to his efforts to stay in this country while his status was unclear to him. One way or the other, they are minor criminal offenses which would not have resulted in automatic depuration.

The postconviction court held an evidentiary hearing on Menchaca-Ramirez’s motion. No testimony was taken as Menchaca-Ramirez had been deported, and the court accepted the stipulation of defense counsel that she advised Menchaca-Ramirez that his admission “may” have immigration consequences and that he should talk to an immigration lawyer if he was concerned.

The court cited the transcript of the 2011 plea colloquy where the court informed Menchaca-Ramirez, “if you are not a United States citizen, this plea would subject you to deportation.” The court found this language sufficient to place Menchaca-Ramirez on notice of the immigration consequences of his plea and denied the motion.

“[W]hen the deportation consequence [of a plea] is truly clear . . . the duty to give correct advice is equally clear.” Padilla v. Kentucky, 559 U.S. 356, 357 (2010).

Here, unlike his original plea, Menchaca-Ramirez’s admission to the probation violation resulted in his mandatory deportation and eliminated his eligibility for deportation relief.

Under these particular circumstances, even if the trial court’s deportation warning during the plea colloquy is considered sufficient, it does not cure the prejudice resulting from counsel’s failure to advise Menchaca-Ramirez of the “truly clear” deportation consequences of his admission as required by Padilla. See Hernandez v. State, 124 So. 3d 757, 763 (Fla. 2012).

The appellate court then reversed and remanded. The court pointed out that the ineffective assistance that Mr. Menchaca-Ramirez received occurred at the hearing on his violation of probation in 2011.

Thus, on remand, there is no basis to set aside his convictions from 2008. On remand, the postconviction court should set aside the order of revocation and probably the new conviction and sentence for driving without a license. Even though the sentence imposed on the order of revocation is fully served, it might be possible for the postconviction court to enter a new order of revocation with a sentence that would not necessitate this man’s deportation.

But Mr. Menchaca-Ramirez obviously will not be able to attend these proceedings or provide live testimony. Perhaps he can resolve these matters from Mexico in a fashion that will allow him to return to his family in the United States, but there is no question that our mandate will be a challenge for the postconviction court.

Immigration law uses the term “immigrant” but the term is used by lay persons to refer to all non-citizens. Immigration law distinguishes between permanent residents (immigrants) and temporary visitors (non-immigrants). There are non-immigrants who enter the United States on a visitor visa such as student visa, investor visa, religious worker, entertainer visas, or under a visa waiver program who change their minds and want to remain in the United States. Many persons arrive here with an employment authorization document or EAD which is a work permit which will identify the person’s status in the United States.

You are illegal for immigration purposes if you are in a class of persons who entered the United States by crossing the border or by land or sea without inspection and /or entered legally but later fell out of status. The term EWI is used to refer to persons who have entered by land or by sea without inspection by border patrol or immigration officials. The term “present in the United States without being admitted or paroled ” is another way of saying the person is EWI.

A person who has entered legally and then over stayed the time limits of the visa are in a better position for securing some type of relief than the persons who entered without inspection. Those who have entered the United States legally may have more relief under the INA then those who have no status at all.

In helping your attorney decide what is the best way to determine your status or lack of status and what path is best for you to choose, you must bring to the initial interview with your lawyer all relevant information pertaining to your place of birth, place of origin, dates of entry and dates of leaving the United States.

Your passport, resident work card or work permit, your form I-94 and all correspondence from the U.S. Department of Homeland Security ( DHS ). Some non-immigrants want to secure legal permanent residence status and those that have been given “green cards” may seek to become U.S. citizens.

Immigration law looks to what is your status or lack of status and whether you are eligible to be removed from the United States for non-compliance with the provisions of  INA. Often non-immigrants enter lawfully and overstay the term of the visa and are then out of status and become subject to removal.

Sometimes clients don’t know their immigration status or don’t realize that they are very close to being a green card holder or to securing U. S. citizenship. For example, certain persons are derivative citizens. This means that an individual born abroad of a U.S. citizen parents, or a permanent resident child whose parents naturalize before he or she turns 18 years of age. Derivative citizenship is a complicated area and is very fluid and changes from time to time.

The Supreme Court issued its decision in 2010 overruling the Kentucky supreme court on an issue involving whether the Sixth Amendment right to effective assistance of a lawyer, includes a lawyer who knows enough about immigration law to let you know whether your plea bargain was going tof guarantee your removal from the United States at the end of your sentence.

Jose Padilla was a Honduran who immigrated to the United States and became of lawful permanent resident. He served in the military and was deployed to and fought in the Viet Nam War. He was honorably discharged and lived in the United States as a LPR for over forty years. He made a mistake for which there were grave consequences.

In 2001, while working as a truck driver, he was arrested while transporting marijuana. His defense lawyer advised him that his plea bargain would not affect his immigration status but this lawyer’s advice was wrong. Padilla was almost guaranteed to be deported because of the offense charged and the punishment he was given.

On his own, Padilla filed a pro se motion for post conviction relief alleging he was given bad advice by his criminal defense  lawyer. Further, he alleged that the Sixth Amendment right to a lawyer meant that he was guaranteed a lawyer that did not give him the wrong advice about the consequences of his plea deal under the immigration laws of the United States. Padilla argument was that had he known that he was guaranteed to be deported after he admitted to the state criminal charges, he never would have agreed to enter a guilty plea or no contest plea to those criminal charges. Had his lawyer told him that his plea would make him eligible to be deported, Padillia would have made the State of Kentucky prove the elements of the charges against him beyond and to the exclusion of every reasonable doubt.

A foreign born defendant may value his or her right to remain in the United States more than having to go to jail and serve a sentence of incarceration if convicted after a jury verdict.

The Court went on to state that “certain terms of the relevant immigration statue are succinct, clear and explicit defining the removal consequences.” For example, 8 USC 1227 ( a ) B ( i ) states:

Any alien who any any time after admission ( entry into the United States ) has been convicted or a violation of ( or a conspiracy or attempt to violate ) any law or regulation of  a State,United States or a foreign country relation to a controlled substance…..other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.”

The Court determined that when the lawyer’s advice is clearly contrary to  the INA provisions and his advice results in the client being eligible to be deported, the client has been denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution.

(A) The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

Immigration law’s definition of the term “conviction” is different than state court interpretation of the same word. If a person entered a no contest plea or a guilty plea, successfully completes a period of probation and all state court charges are later dismissed, an immigration court can still determine that “there are sufficient facts to justify a finding that the person was convicted” for immigration purposes. For example, the imposition of the payment of “court costs” has been determined to be punishment and qualifies as a conviction.

Entry into a diversionary program requires careful analysis of whether any admission of guilt is offered by the accused and whether there was any punishment at all. Under Florida law, successful completion of a diversionary program where there has been no admission of guilt offered and no punishment imposed, would not violate INA 101 ( a ) ( 48 ). Now, if the contract signed by the accused wth the State Attorney Office  is placed in the court file, this may be an admission of guilt which is now “part of the record” and may now violate INA 101 ( a ) ( 48 ) as an admission to a crime in the record to have drastic consequences in immigration court.

Many first time offenders and youthful offenders may be surprised to learn that just because the criminal charges have been expunged in accordance with state law, that immigration courts will sometimes determine that there is a “conviction” of a crime for immigration purposes. In all cases the nature of the criminal charge that was expunged will be a consideration. Whether the person is entitled to other relief under the immigration act is another issue that your immigration lawyer can discuss with you. There may be procedures where you will be entitled to a wavier under the INA provisions which will prevent the client being removed. If you are currently in removal proceedings, your may convince an immigration judge that you are entitled to cancellation of removal.

When a person is convicted and then receives a pardon, there will be an analysis of whether the pardon was a full and unconditional pardon and what was the nature of the crime you were convicted of before the pardon was issued. Unfortunately, for immigration purposes, you may still be convicted in the eyes of the immigration judge. The person may not be removable if a waiver is obtained or an immigration judge issues an order of  cancellation of removal.

Persons who have been charged with criminal violations that were born in a country other than the United States or its territories, face immigration consequences from negotiated plea bargains that can lead to mandatory detention and removal by the U.S. Immigration and Customs Enforcement (ICE).

Convictions will result in the individual being placed in removal proceedings  or expedited removal proceedings involving certain convictions. Certain convictions demand that the individual be subjected to mandatory detention until the person is removed from the United States. Even legal permanent residents who are convicted may be unable to become United States citizens through the naturalization process.

These classes of offenses are sometimes straight forward as contained in the Immigration and Nationality Act (INA) or others are gray areas which the Federal Courts have to interpret on a case by case basis.

If it is determined that the accused is not going to contest the criminal charge, there are issues that the defense lawyer has to address with the prosecutor to avoid any admission or plea that results in the classification of the offense as an “aggravated felony” under the INA. In some circumstances the defense lawyer may be able to secure a plea bargain that avoids any immigration consequences at all. In some cases, the plea deal will at least provide the foreign born defendant with the reasonable assurance that after the criminal plea is entered that the defendant will have the ability to seek a waiver or other relief.

The term “conviction” is one thing under state laws, but has its own meaning under immigration law. It is important to attempt to plea to a lesser offense that is not a “crime of moral turpitude” or a theft  or fraud offense which may be considered “crimes of moral turpitude” in certain situations. Certain drug offenses carry sentences requiring  mandatory adjudication which will make the criminal defendant ineligible or removable because of the nature of the offense or the sentence.

Legal permanent residents (LPR) who are convicted of a crime involving moral turpitude within certain statutory periods of time, will be ineligible for naturalization.

Crimes of moral turpitude will involve specific intent crimes, knowledge and /or willfulness. Acts of physical violence, including domestic violence, which causes harm to another person, can be crimes of moral turpitude. Robbery and burglary are offenses which are generally considered to be crimes of moral turpitude. If the defense lawyer is successful, he may secure a prosecutor’s consent to plead to a charge that is not a specific intent crime or a crime that does not involve any use of intended force or violence.

In one case, Florida’s theft statue was determined by the Federal Court to be divisible for where the statute contained two distinct provisions, one dealing with “appropriation” and the other portion dealing with “intent to deprive”. It may be necessary to secure a transcript of the defendant’s plea as well as certified copies of the final judgment of conviction to ascertain exactly what the defendant was “convicted” of by the state court or federal court. Your lawyer may be able to convince an immigration judge that the plea bargain and transcript of the plea hearing does not support any crime involving moral turpitude and the defendant is not removable.

How long the defendant has been physically present after his or her date of admission is very important. Certain individuals may have been convicted of a single count involving moral turpitude but the sentence was negotiated to be a sentence under one year may not be removable. In theft cases, the amount of loss is very important. Did the theft conviction involve an amount more than $10,000 or is the amount less than $10,000.00. Was the conviction for money laundering? Sometimes, a civil settlement wherein money is paid back will affect whether the defendant is in violation of the INA.

Certain defendants who are convicted of an aggravated felony after a certain date, face mandatory detention after leaving prison having served a federal or state sentence. The criminal defendant may benefit from serving 364 days in the county jail rather than serving three years of supervised probation.