Criminal Defense of Immigrants
§ 1.16 1. Before Conviction
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Criminal defense counsel’s obligation to investigate the adverse immigration consequences of various potential dispositions of a criminal case is the subject of a considerable literature. See Chapter 2, infra. Counsel must evaluate the immigration consequences of a conviction of each charge pending against the client, the lesser included offenses related to each charge, reasonably related offenses, and any other charge that might be brought based on the events giving rise to the criminal case, in an effort to identify a safe haven that the client might plead to without triggering removability. See Chapter 5, infra.
Defense counsel should also check out the immigration effects of each prior conviction (or other disposition) of each criminal case on the client’s criminal history, because the opportunity to negotiate a disposition of the new criminal case may offer the opportunity to renegotiate the prior convictions as well. Thus, criminal defense counsel can protect the client against removal on account of a prior conviction by making it a condition of the plea bargain on the new case that the prior conviction be vacated on a ground of legal invalidity and a substitute plea to a “safe haven” be arranged on the prior conviction.