Safe Havens

Some safe havens are safer than others.  It is possible to imagine them on a scale from 1 to 100, in which the number represents the degree of probability that the client will win a final victory before one of these decision-makers and thus permanently avoid deportation on account of a given safe haven.  Thus, a “total” safe haven would be represented by an opinion that the client has a 100% chance of avoiding deportation on account of the safe haven disposition.  A non-safe haven would be one in which the chance is 0%.  Other cases would fall in between those extremes.

          A safe haven need not be 100% safe in order to help the client.  First, the client may need only avoid an aggravated felony, for example, in order to become eligible for some form of relief in immigration court.  Second, the government often charges only one or two of many possible grounds for removal on the basis of the conviction or conduct at issue, and the client may need only to avoid a finding that s/he is deportable on the charged grounds.  Although the government may later lodge additional charges in the course of the proceedings, it should be barred by res judicata from obtaining a removal order based on a successive or subsequent Notice to Appear after the initial proceedings have been terminated. Res judicata binds the government as to the issues raised, and the issues which could have been raised, in removal proceedings.[4]

            It is very important in choosing a safe haven to know exactly how safe the client needs it to be.  In a pre-plea context this may be difficult to do, since counsel cannot know where (the jurisdiction in which) or when the client may encounter the immigration authorities.  In this case counsel will want to find the safest haven possible.  In a situation where an NTA has already been issued, and the client is seeking post-conviction relief, counsel can get a better idea of the minimum changes that would need to be made to the criminal record in order to allow the client to move to terminate proceedings or to become eligible for relief.  Counsel can also decide whether the client needs to argue that the current conviction is a complete, or only partial, safe haven in order to achieve some goal in immigration court (i.e. does counsel need to craft an argument that the client’s conviction is not an aggravated felony, controlled substances offense, and crime involving moral turpitude, or can the client get buy with just arguing that it is not an aggravated felony).  In some situations, the safe haven argument need only be strong enough that it will not be considered frivolous by the reviewing courts.

            The intensity of a client’s desire to avoid deportation will also have an effect on how safe the safe haven must be for the client to be willing to attempt to obtain it and to sell it in immigration court.  Some clients care so deeply about continuing to live in the United States that they will be willing to endure lengthy custody and great expense even if the chance of success is only 10%.  Others will require a greater chance of success before they regard a safe haven as worth pursuing.

[4] Matter of Restubog, 15 I. & N. Dec. 48, 49 (BIA 1973); Matter of Talanoa, 13 I. & N. Dec. 161 (BIA 1969).