Safe Havens

(A)  The Search for a Safe Haven.  The basic approach to defending a criminal case, so as to take immigration consequences fully into account and minimize them as much as possible, is quite simple:

a.         Obtain exact information on the client’s immigration situation;[34]

b.         Consult an immigration expert to determine realistic criminal goals that can minimize immigration consequences;

c.         Determine with the client how important the immigration goals are, as opposed to traditional criminal defense goals;

d.                  Formulate a strategy that gives appropriate weight to the need to minimize adverse immigration consequences, in light of the other consequences of the criminal case and the desires of the client; and

e.         Continue to consult with an immigration attorney since additional immigration questions frequently arise during the course of the case.

            If the client (a) is not a U.S. citizen or national, or (b) is a U.S. citizen but stands in danger of losing that status through denaturalization, because s/he falsified information on the naturalization application, or otherwise, then s/he is subject to immigration consequences of the criminal case.

            This potential immigration jeopardy places the client in the position of needing to pursue two different and sometimes inconsistent goals:

(1)    The traditional criminal defense goals of minimizing the criminal conviction and minimizing the sentence, on the one hand, and

(2)    The immigration-related goal of minimizing the damage to the client’s immigration status flowing from the disposition in the criminal case.

            Many times, these goals flow together.  For example, an immigrant who cannot avoid conviction of an offense on the aggravated felony list that is an aggravated felony only if a sentence of 365 days or more is imposed wishes to reduce the sentence at least to 364 days for immigration purposes, and obviously wishes to minimize the length of the sentence for criminal purposes as well.  In this instance, there is no inconsistency between the criminal and immigration goals.

            At other times, however, the criminal goals conflict with the immigration goals.  If the client is offered a deportable plea bargain, and cannot obtain relief from deportation in immigration court, then it is often supremely important to the client to obtain a change in the offense of conviction, or the sentence imposed, sufficient to avoid deportability.  In order to motivate the prosecution to agree to this change, it may be necessary to offer the prosecution a traditional criminal defense inducement such as:

(a)     Pleading to two offenses instead of one;

(b)    Pleading to a felony instead of a misdemeanor; or

(c)     Agreeing to serve extra time in custody.

Since criminal defense counsel traditionally fight like the devil to avoid these outcomes in a criminal case, they are sometimes slow to understand or agree to pursue them even where they may be necessary prices to pay in order to obtain a nondeportable result where the immigration consequences are the dominant consideration for the client.

[34] See M. Vargas, Representing Noncitizen Criminal Defendants In New York State, Chapter 2 (NY State Defender’s Association, Criminal Defense Immigration Project, 2d ed., 2000).