Criminal Defense of Immigrants

Chapter

§2.1 I. Introduction: 3 Reasons to Protect Our Clients' Immigration Status
§2.2 II. It Is In Our Clients' Interest
§2.3 A. Summary
§2.4 B. Damaging Immigration Consequences of a Criminal Case
§2.5 C. Immigration Detention is Often Mandatory
§2.6 D. No 1 Slips Through the Cracks Any More
§2.7 1. Immigration Detainees
§2.8 2. Federal and State Prisoners Subject to Removal
§2.9 3. Deportations on Criminal Grounds
§2.10 E. Anxiety and Emotional Distress
§2.11 F. Family Tragedy
§2.12 G. Permanence of Damage
§2.13 H. Illegal Re-Entry Exposure
§2.14 I. Immigration Effects Often More Important Than Criminal Penalty
§2.15 III. If We Don't Do It in Criminal Court, Very Often No 1 Can, and It's Difficult or Impossible to Recover From a Mistake
§2.16 A. Summary
§2.17 B. Deportation is Often Mandatory
§2.18 C. Discretionary Relief May be Unavailable
§2.19 D. The Client May be Unable to Afford a Defense in Immigration Court
§2.20 E. The Client May be Unable to Tolerate Immigration Custody
§2.21 F. Post-Conviction Relief May be Impossible, Prohibitively Expensive, or Too Slow
§2.22 IV. It is Part of Our Job as Criminal Lawyers, and It is In Our Interest to Do a Good Job
§2.23 A. Summary
§2.24 B. It's the Right Thing to Do: Ethical Considerations
§2.25 1. We Must Decline Representation if We Lack Necessary Learning
§2.26 2. We Cannot Limit the Scope of Representation Without Obtaining the Client's Informed Consent
§2.27 3. In Any Event, We Must Establish the Citizenship of Each Client
§2.28 C. Courts Expect Us To Do It
§2.29 D. The Standards of Our Profession Require it
§2.30 1. During the Initial Interview
§2.31 2. During Plea Negotiations
§2.32 3. Before Sentencing
§2.33 4. During Sentencing
§2.34 E. State Statutes Require Advice of Possible Immigration Consequences
§2.35 F. Professional Literature Urges Us to Do So
§2.36 G. Ineffective Assistance of Counsel
§2.37 1. Duty to Investigate and Use Mitigating Facts
§2.38 2. Duty Not to Give Affirmative Misadvice
§2.39 3. Duty to Advise
§2.40 4. Duty to Defend Against Collateral Consequences
§2.41 H. It Is In Our Own Interest to Defend Our Clients Against Immigration Disaster
§2.42 V. Conclusion: What Should We do?
§2.43 A. In General
§2.44 B. 5 Simple Steps
§2.45 1. Citizenship
§2.46 2. Investigation
§2.47 3. Consultation
§2.48 4. Negotiation or Litigation
§2.49 5. Saying Goodbye
§2.50 C. Resources

§ 2.20 E. The Client May be Unable to Tolerate Immigration Custody

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Clients in mandatory detention are often unable to tolerate the inhuman conditions during the months or years that may be necessary to litigate and win their cases in immigration court. The government can often keep them in mandatory detention even after the immigration trial judge has ordered their release, during the months or years it may take to complete a bond appeal to the Board of Immigration Appeals. Even if the clients are receiving accurate immigration advice about their situation, they often refuse to follow it because they simply can’t hang in there. Once deported, the damage is irrevocable.