Criminal Defense of Immigrants

Several types of individuals may consult this book.  Each of them, with differing backgrounds and in different situations, may need to approach the information contained in this book from a different direction or interpret it in a different way.

                Criminal defendants who are not citizens of the United States, and their families, who seek to understand their predicament or the situation of a loved one, may wish to avoid adverse immigration consequences of a conviction, or attempt to understand whether a criminal conviction that has already been suffered in fact falls within a ground of deportation, and, if so, what to do about it.  See § 1.9, infra.

                More commonly, immigration counsel — lawyers representing immigrants who seek to remain in the United States rather than suffer deportation or other adverse immigration consequences — will attempt to understand which dispositions are safe in a criminal case, and which are not, and will not in fact trigger deportation or other adverse immigration consequences.  See § 1.11, infra.  Other immigration counsel will be confronted with a client who has already suffered a conviction, and will want to determine whether it in fact falls into a safe haven that does not trigger deportation.  See § 1.12, infra.  They may also wish to identify arguments that the conviction does not trigger deportation that can be raised before the immigration court, the Board of Immigration Appeals, or the federal courts in order to obtain an order terminating proceedings.  See § 1.13, infra.  If that is not possible, they may wish to raise legitimate arguments so that even if they are not ultimately successful in immigration court, they have at least temporarily forestalled deportation for a sufficient period of time to give criminal counsel an opportunity to re-enter the criminal courts, vacate the conviction on post-conviction relief, and obtain a substitute disposition that itself constitutes a safe haven protecting the client from deportation.  See § 1.14, infra.

                Generally speaking, immigration counsel will therefore be interested not only in safe havens that provide strong protection against deportation, but also in legitimate arguments that a given conviction is a safe haven that can fairly be raised in immigration court and provide the client with additional months or years residence in the United States before deportation occurs, during which time criminal counsel can attempt to solve the problem in criminal court by obtaining post-conviction relief from the troublesome conviction(s) and replacing them with safe havens.  It is not always possible to distinguish in advance between a winning and a losing argument, but immigration lawyers can tolerate this uncertainty better than criminal counsel can, who must attempt to give a wide berth to any disposition that might possibly trigger deportation when constructing a disposition for a defendant who is not a citizen of the United States.  See § 1.15, infra.

                Criminal counsel face the need to identify safe havens for non-citizen defendants both before conviction, see § 1.16, infra, and after conviction.  See § 1.17, infra.  In both cases, they must attempt to ensure with as much confidence as possible that the safe haven is in fact safe.  Of course, it will not always be possible to obtain a disposition that is the safest of safe havens, so criminal counsel will need to rank various potential dispositions in order from safest to least safe, and attempt to obtain the best possible disposition for the client.  After conviction, if the conviction triggers deportation, post-conviction counsel will find it extremely useful to identify a safe haven related as closely as possible to the offense of conviction to offer to the prosecution as a substitute for the deportable conviction sought to be eliminated.