A recent court case out of Georgia shows that immigration status must be taken into consideration by an experienced Fort Lauderdale criminal defense lawyer.
Past court cases have revealed that defendants — whether they are legal citizens or not — must be told about the consequences of entering into a plea deal regarding their immigration status. It’s often assumed that going to trial and losing could subject someone to deportation. But every time a plea agreement is reached, defendants are read these warnings.
The case of Moncrieffe v. Holder, Jr. shows us that this is an important issue, even in a seemingly minor West Palm Beach drug case.
In the Moncrieffe case, the defendant entered the country as a permanent resident in 1984 when he was 3 years old. In 2008, he pled guilty to a charge of possession of marijuana with intent to distribute under Georgia law. He was sentenced to five years probation after entering his guilty plea.
After his conviction, the Department of Homeland Security charged him with being removable from the country, according to court records. At an immigration hearing, a copy of the conviction was produced. He appealed the ruling, hoping that an appeals court would overturn.
On appeal, he argued that the Georgia crime shouldn’t be considered an “aggravated felony” under federal law that enables a person to be removed for immigration reasons. He argued that under Georgia law, acts are punished as equivalent to a misdemeanor as related to the Controlled Substances Act.
The document produced in immigration court didn’t show how much marijuana the man possessed at the time he was arrested. Moncrieffe said that because the government wasn’t able to prove he had more than a small amount of marijuana, the conviction should be considered a federal misdemeanor.
The appeals court admitted that other courts are split on how to handle such cases. Courts in the Northeast have considered cases where they don’t know how much of a drug there is to be misdemeanors. Other courts have ruled that it doesn’t matter and they should be considered felonies under federal law that allow for deportation.
This court looked at the facts and ruled that this case should be considered a “drug trafficking crime” and an “aggravated felony.” Because the man didn’t prove how much marijuana was involved, the court wouldn’t be swayed that it should consider the charge a misdemeanor for immigration purposes.
This is the opposite situation that would happen in a criminal case. Defendants have the right not to say anything or present a defense, whereas the prosecution has the great burden of proving the charges beyond all reasonable doubt.
But a defendant who is an immigrant has more on the line than a defendant who is a citizen. They could face deportation, which is why fighting the charges are so important. Whether a minor drug charge, a theft charge or an assault or battery, the charges must be taken seriously.
If you are arrested in West Palm Beach or elsewhere in South Florida, contact Leifert & Leifert at 954-523-9600 or 561-988-8000 for a free consultation.
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