Representing the foreign national in criminal court.

• Author: Pinkard, Eric C.
• Position: Florida

Deportation Consequences of a Criminal Conviction and Overcoming Problems of Communication

Representing the foreign national client in criminal court presents a variety of challenges. First of all, the client may be in jeopardy of deportation if "convicted" of a criminal offense.[1] Secondly, there can be problems providing effective attorney-client communications due to language barriers and the fact that the foreign national client is not familiar with the United States legal system.

Florida Rule of Criminal Procedure 3.172(c)(viii) states that a judge accepting a plea to a criminal offense, as part of the plea colloquy, has to inquire whether the defendant is a United States citizen and has to inform the defendant that the entry of the plea might lead to deportation. Failure of the court to so advise can be grounds to set aside the plea as not freely and voluntarily given.

As a consequence, most written plea forms used throughout the state have a provision that the defendant has knowledge that the entry of the plea may lead to deportation. It clearly is the fundamental responsibility of the defense counsel to completely advise the client concerning all aspects of the plea form. That cannot be accomplished in the context of deportation consequences without a working knowledge of certain aspects of immigration/deportation law.

The cultivation and development of effective attorney-client communications also is of critical importance when representing a foreign national in criminal court. Most foreign national clients are from countries with legal systems entirely different from the United States system. The most widely used legal system in the world is the civil law system as used in Europe and Asia. When representing a foreign national from a civil law country, it is helpful for the practitioner to have a basic knowledge of the differences between the American legal system and the civil law legal system. This knowledge will place counsel in a much better position to effectively communicate with the client.

This article will provide an overview of the current law concerning the deportation consequences of a criminal conviction for a foreign national client. Also discussed are the legalities of setting aside the guilty plea of a foreign national client if the sentencing judge fails to conduct a proper plea colloquy under the Florida Rules of Criminal Procedure. Lastly, the article will outline some areas of fundamental distinction between the American common law legal system and the civil law system in order to facilitate more effective attorney-client communications.

Deportation Consequences of Criminal Conviction

Certain criminal convictions will render a foreign national client deportable under the Immigration and Naturalization Act (INA).[2] The classification of different immigrant status is a complicated process. The different categories include legal permanent resident, nonimmigrant visa holder, and illegal alien.[3] For the criminal defense counsel, specific knowledge of all the various categories is unnecessary. The most important thing to remember is that any client who is not a United States citizen is at risk of deportation as a result of certain criminal convictions.

After determining that the client is not a United States citizen, the next step is to establish whether the offense charged is a "deportable offense" within the federal law. The criminal provisions for deportation are codified at 8 U.S.C. [sections] 1251(a)(2) and [sections] 241(a)(2) of the Immigration and Naturalization Act. Additionally, the Anti-Terrorism and Effective Death Penalty Act of 1996[4] and the Illegal Immigration Reform and Immigration Responsibilities Act of 1996[5] also have potential deportation consequences for a foreign national convicted in criminal court.

The criminal deportation grounds fall within three principal categories: 1) general crimes; 2) controlled substances; and 3) firearms offenses and miscellaneous crimes.

General Crimes

* Misdemeanor offenses

Deportation for misdemeanor offenses occurs when the foreign national is convicted of two or more "moral turpitude" crimes not from a"single scheme of criminal misconduct."[6]

When advising the foreign national client of deportation consequences of a misdemeanor conviction, it is essential to know the client's prior record as well as the nature of the current charge. If the client has a previous misdemeanor conviction, it must be determined whether the prior is a "conviction" under the act and whether the crime is one of "moral turpitude."

Under the Illegal Immigration Reform and Immigration Responsibilities Act of 1996 (IIRIRA), a conviction is defined as a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, when: 1) a judge or jury has found the alien guilty or has admitted sufficient facts to warrant a finding of guilt; and 2) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.[7]

The provisions of the IIRIRA mean that any plea of guilty or no contest by a foreign national client to a misdemeanor, regardless of whether adjudication is withheld, when the judge imposes any type of sentence, is going to meet the act's definition of a "conviction." Therefore, defense counsel is not protecting a client from deportation merely by obtaining a withhold of adjudication in a misdemeanor case.[8]

The definition of the term "moral turpitude" crime is unclear. Surprisingly, the INA and implementing regulations do not define the term. The Board of Immigration Appeals has held that a crime involving "moral turpitude" is "[i]nherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between man and man, either one's fellow man or society in general."

Crimes which courts have recognized as involving "moral turpitude" include murder, involuntary manslaughter, kidnapping, mayhem, assault, assault with a deadly weapon, rape, prostitution, lewdness, arson, blackmail, robbery, embezzlement, forgery, larceny, burglary, extortion, perjury, counterfeiting, mail fraud, and willful tax evasion.[9]

In determining whether a crime involves "moral turpitude" neither the immigration authorities nor the courts may go beyond the record of conviction to examine the circumstances under which the crime was committed. The determination must be made solely on the basis of the statutory definition of the crime and the record of conviction.[10] Extrinsic evidence may not be considered in determining whether a crime involves "moral turpitude."[11] The question then is whether the inherent nature of the crime as defined by law and particularized in the charging document involves "moral turpitude."[12]

In Florida, misdemeanor...