Safe Havens

Chapter

§5.1 I. Introduction
§5.2 II. Investigation
§5.3 A. Interviewing the Client
§5.4 1. Special Considerations
§5.5 2. Non-English Speaking Clients
§5.6 B. Immigration Status
§5.7 1. Non-Deportable Nationality
§5.8 C. Client�s Equities
§5.9 D. Current Criminal Case
§5.10 E. Verifying the Immigration Situation
§5.11 1. Filing FOIA Requests
§5.12 2. Information on Amnesty Clients
§5.13 F. Verifying Exact Criminal History
§5.14 1. FBI Criminal History Report
§5.15 2. State Criminal History Records
§5.16 3. Department of Motor Vehicle Conviction Records
§5.17 G. Obtaining Records from the Rendering Court
§5.18 III. Chronology
§5.19 IV. Working with Cooperating Counsel
§5.20 A. Immigration Counsel's Role
§5.21 B. Criminal Defense Counsel's Role
§5.22 C. Post-Conviction Counsel's Role
§5.23 V. Government Burden of Proof of Deportability
§5.24 A. Clear, Convincing and Unequivocal Evidence
§5.25 B. Reasonable Doubts Favor the Noncitizen
§5.26 VI. General Safe Havens
§5.27 VII. Avoiding a Conviction
§5.28 VIII. Obtaining a Non-Deportable Conviction
§5.29 A. Examine the Range of Possibilities
§5.30 1. Charged Offenses
§5.31 2. Lesser-Included Offenses
§5.32 3. Reasonably-Related Offenses
§5.33 4. Unrelated Offenses
§5.34 5. Factual Basis for Plea
§5.35 B. Verify Conviction Does Not Trigger Deportation
§5.36 1. Procedure
§5.37 a. General Aggravated Felony Safe Havens
§5.38 b. Specific Aggravated Felony Categories
§5.39 c. General Moral Turpitude Safe Havens
§5.40 d. Judicial Decisions Identifying Safe Havens
§5.41 2. Other Conviction-Based Grounds of Deportation
§5.42 a. Screening Questions
§5.43 b. Examine Relevant Grounds
§5.44 IX. Obtaining A Non-Deportable Sentence
§5.45 A. Sentence Imposed
§5.46 B. Maximum Possible Sentence for Offense
§5.47 C. Level of Offense
§5.48 1. Felony
§5.49 2. Misdemeanor
§5.50 3. Infraction
§5.51 D. Restitution
§5.52 X. Verify Conduct Does Not Trigger Deportation
§5.53 XI. List Range of Possible Safe Havens
§5.54 A. Statute of Conviction
§5.55 B. Offense of Conviction
§5.56 C. Minimum Elements of Offense of Conviction
§5.57 D. Maximum Possible Sentence for Offense
§5.58 E. Actual Sentence to be Imposed
§5.59 1. Level of Offense
§5.60 2. Length of Sentence
§5.61 3. Restitution
§5.62 F. Other Sentence Characteristics
§5.63 1. Sentence Enhancements
§5.64 2. Effect as Prior Conviction in Future
§5.65 3. Other Sentence Elements

§ 5.28 VIII. Obtaining a Non-Deportable Conviction

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If it is not possible to avoid a conviction for immigration purposes, the next level of safe haven is a conviction that does not fall into any of the conviction-based grounds of deportation. Counsel will want to obtain the charging paper and investigation reports in the pending criminal case as a starting point, and then make as large a list as possible of all likely or possible offenses of conviction. This includes an examination of (a) all charged offenses, (b) for each, all lesser-included offenses, (c) all reasonably-related offenses, and (d) all offenses for which there exists a factual basis. If it is not possible to discover a safe haven (i.e., a non-deportable offense of conviction) among those, it may be necessary to resort to (e) an unrelated offense that is a safe haven.