Safe Havens

If the amendment to the charge happens orally, and the court did not scribble it on the face of the charging paper, then the only way to verify the final language of the charge to which a plea was entered is a transcript of the court reporter’s notes or tape recording of the plea colloquy.  It is wise, when constructing a safe haven, to arrange for a court reporter to take down the proceedings if the court does not do so as a matter of course, since it is very difficult to transcribe a tape recording of the proceeding, and it may well be necessary to have an accurate record of the proceedings to be able to establish that the disposition is a safe haven.

            On the other hand, if adverse information may be contained in the transcript, it may be better to waive a court reporter or tape of the proceedings, or not to obtain a copy.

            The burden rests on the government to establish by clear and convincing evidence that the disposition of the proceedings falls within a ground of deportation.  In case of any ambiguity, the removal proceedings should be terminated.  See § § 5.23-5.25, supra.  Therefore, counsel should exercise care not to fill in a blank in the government’s proof of a deportable conviction by providing missing documents or arranging for the transcription of a hearing containing damaging information that might not otherwise come to the government’s attention.