Safe Havens

In a case with disastrous immigration consequences, the client may care so deeply about avoiding them that s/he will choose to accept (or to risk at trial) extra jail time or conviction on extra counts in order to attempt to avoid the disastrous immigration consequences.

This raises the following possibilities for plea-bargaining:

·          The client may choose to offer to plead guilty to a more serious offense, or more counts, that have smaller immigration effects, as opposed to the charged offense or an offered lesser offense which carries a greater possibility of serious immigration damage.

·          The client may offer to serve additional days, months, or even years of incarceration in order to obtain a plea bargain in which the offense of conviction is altered to one which affords him or her an enhanced probability of being able to salvage the immigration situation.

·          The client may choose to offer to inform against other culprits in return for a plea bargain s/he can live with from an immigration standpoint.  This can take extreme forms (more common in federal court) of years of involuntary and highly dangerous servitude such as going undercover and busting Mafiosi.  If the client cares enough, and the prosecution is willing, sometimes an agreement to avoid deportation can be worked out.  The immigration laws contain a special “S” visa, nicknamed the “snitch visa,” for noncitizens if a prosecutor seeks it.[14]

·          If there are codefendants, perhaps the prosecution would agree to inflict greater punishment on a U.S. citizen codefendant, or one who is an immigrant whose immigration status is not in jeopardy, in return for lightening up on an immigrant at risk.

·          The client may be willing to take a long-odds case to trial since long odds are better than no odds at all.

For example, a client might agree to serve the upper term of three years, instead of the two‑year mid‑term, in return for changing the felony offense to a different offense which does not trigger adverse immigration consequences.  Counsel can offer to have the client plead to two misdemeanors in lieu of a felony, where a felony would be necessary to create a ground of deportation.  See § 5.48, supra.

            Counsel can offer to plead to a non-deportable offense with a sentencing enhancement, since the enhancement is not considered in determining the immigration consequences of the offense of conviction.  See § 6.24(B), infra.

            These are examples; very often, when the exact immigration consequences are understood, the solution magically appears.  It is often easy to achieve.  For example, a sentence of 364 days instead of 365 may solve the problem.  Or, obtaining imposition of sentence suspended, instead of execution of sentence suspended, may solve the problem.

[14]  Violent Crime and Control and Law Enforcement Act of 1994 (Pub. L. No. 103-322, Sept. 1, 1994), creating new INA § 101(a)(15)(S), 8 U.S.C. § 1101(a)(15)(S).  See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 3.25 (2005).