Criminal Defense of Immigrants


§ 2.14 I. Immigration Effects Often More Important Than Criminal Penalty

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Very often, the adverse immigration effects of a criminal case are far worse for the client than any jail or fine will be.  The normal criminal effects are frequently secondary, as in the first example above, in which the criminal sentence was relatively harmless (probation with no jail), but the automatic and unavoidable immigration effects of the conviction were life-shattering and permanent.  In these cases, the criminal defense strategy should be directed primarily to avoiding the immigration consequences, and only secondarily to minimizing the criminal judgment or sentence.


                Because the adverse immigration consequences are frequently mandatory and permanent, it is common for the immigration consequences to outweigh the criminal consequences in the following situations:


(1)        all misdemeanor cases;

(2)        all probation felony cases; and

(3)        all minor felony cases, even if the defendant receives a sentence of several years in prison.  This custody time will pass, whereas deportation is usually permanent and inexorable.


Where a state prison sentence of four or five years is imposed, sometimes the immigration and criminal consequences may be equivalent.  It would not be uncommon for some criminal defendants to choose to receive a shorter prison sentence, even if it meant permanent deportation, whereas other defendants would take the long view and be willing to spend more time in custody in order to avoid deportation.  In cases involving longer prison sentences, more defendants will strike the balance in favor of minimizing the prison time if possible, even if it means automatic deportation.  In life sentence and capital cases, of course, the defendant will typically seek to minimize the prison sentence if possible, even if it means accepting deportation.


                At bottom, this is a highly individualized decision that must be submitted to the defendant.  Counsel cannot make this decision for the client, or assume the client wishes to minimize the custody time.  It remains true, however, that the permanent immigration consequences greatly outweigh the criminal consequences in the vast majority of all criminal cases.  This means most defendants, who are brought to understand the exact meaning of the adverse immigration consequences of a proposed plea bargain, will be willing to sacrifice traditional criminal defense goals in order to protect their immigration status.  They will choose:

(a)       to serve greater time in custody, if a plea to a non-deportable offense can be arranged;

(b)       to plead guilty to two offenses, instead of one, if necessary to protect their immigration status; and

(c)        to plead guilty to a greater offense, that carries a longer maximum prison sentence in the event of a probation violation, to avoid adverse immigration consequences.


Seeking these dispositions runs counter to everything we have come to assume, but we must learn to think outside the box of ordinary criminal defense strategy in order to accommodate the necessities and choices of immigrant clients.