Favorable “equities” are often of importance equal to or greater than legal argument in obtaining post‑conviction relief.  Counsel may use them to persuade judges, prosecutors, former defense lawyers, and others to support the client’s efforts to remain in the United States.  Equities are facts that humanize the client, and constitute reasons why it is important for the client to be able to avoid the harsh immigration consequences of the conviction.

 

            For a list of common equities, see § 2.5, supra.  The equities should be recorded in a declaration from the client, corroborated with as much supporting information as possible, and repeated as litigation and negotiation themes.

 

            PRACTICE POINTER:  In describing the client’s past life, do not make admissions concerning drug trafficking, addiction, or abuse, habitual drunkenness, or prostitution.  The immigration authorities could use such a declaration — even without a conviction for such behavior — as a basis for deportation or exclusion.[12]

[12] See N. Tooby, criminal defense of immigrants, Chapter 2 (2003), for a listing of conduct-based grounds of inadmissibility and removal as to which admissions should be avoided.  See also California Criminal Law And Immigration, Chapter 3 and § 6.2.

CRIM DEF - INVESTIGATION
Criminal defense counsel should consider investigating the human rights situation in the client's country of origin. If the client may be persecuted or tortured if deported back, the criminal prosecutor or court may be more open to allowing a non-deportable plea bargain or granting post-conviction relief to eliminate a deportable prior conviction. Immigration counsel may already have investigated a claim under the political asylum, withholding of deportation, or Convention Against Torture immigration laws and may already have factual materials indicating the client's family members have been beaten or persecuted on account of race, religion, or other asylum characteristics. Note that for use in the criminal courts, a case can be made that deportation would be a disaster for the client even if the situation does not fit within the restrictions of these immigration law claims. One of the best books on the subject of asylum (although somewhat outdated) is D. ANKER, THE LAW OF ASYLUM IN THE UNITED STATES (3d ed. 1999), with 2002 Supplement. The Department of Justice has the State Department Country Reports, including general information on human rights abuses country by country, at usdoj.gov/eoir/ in the Virtual Law Library. An excellent resource for researching country conditions is maintained by the Univerisity of Washington School of Law Library at http://lib.law.washington.edu/ref/asylum.html#.