The Law Office of
William Mallory Kent

1932 Perry Place
Jacksonville, Florida 32207

Important Immigration News for Persons Facing Deportation Based on a Criminal Conviction  

1.   December 5, 2006 - New Supreme Court decision impacts immigration.  The term "aggravated felony," which is defined in accordance with federal sentencing statutes and the U.S. Sentencing Guidelines as including "any felony punishable under the Controlled Substances Act," does not include state crimes that are treated as felonies under state law but that would be treated as a misdemeanor under the CSA--at least not for purposes of deportation, the U.S. Supreme Court held Dec. 5. Although the court dismissed a companion case that more directly presented the federal sentencing issues, the court's opinion makes clear that its interpretation of "aggravated felony" would inform federal sentencing as well. (Lopez v. Gonzales, U.S., No. 05-547, 12/5/06; and Toledo-Flores v. United States, U.S., No. 05-7664, 12/5/06

2.   Florida's Supreme Court established a simple and defendant favorable procedure using Rule 3.850 in Peart v. State for challenging guilty pleas which resulted in criminal convictions which were later being used by immigration (INS ICE) to order a person removed or deported.  The Florida Supreme Court has recently changed the rules in State v. Green which will apply to such motions, making them much more difficult to win in the future, but for now, immigrants will have two years from the date of the Green decision to continue to bring their challenges to prior convictions under the old, Peart rules.  The deadline for using Peart will be October 26, 2008 and the deadline for using Peart and protecting your federal habeas rights may be October 26, 2007.  Please call our office for more information if this may apply to your case.