Criminal Defense of Immigrants


§ 2.23 A. Summary

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Criminal counsel have a legal and ethical responsibility to protect our clients from damaging immigration consequences of a criminal case:


·         It’s the right thing to do.

·         Ethics considerations require it.

·         Courts expect us to do it.

·         Standards of the profession require it.

·         State statutes require advice of possible immigration consequences.

·         Duty to investigate.

·         Duty to use mitigating facts to obtain better plea and lower sentence.

·         Duty not to give affirmative misadvice.

·         Duty to advise the client of actual immigration consequences.

·         Duty to defend against collateral consequences.

Moreover, it is in our own interest to do so:


·         Desire to deliver excellent legal services.

·         Benefits of practice development through total client service.

·         Ineffective assistance of counsel.

·         Malpractice liability.

·         Malpractice insurance rates.

·         Eligibility for membership on court appointed panels.

·         Damage to reputation within the profession.

·         Damage to reputation among client communities.

·         Disciplinary sanctions: disbarment and lesser penalties.

·         Damage to self-esteem.

·         Loss of income.

·         Stress and mental distress.

·         Costs of attempting to rectify a mistake.


These are the main ideas.  More detailed information and legal authorities on these topics are provided below.  If you want, you can skip to the conclusion,[10] which addresses the question: So what?  Where do we go from here?  And offers a surprisingly simple way to do so that uses our knowledge and skills as criminal lawyers, but does not require us to learn the complexities of immigration law.  See § 2.24, infra.

[10]  See § 2.42, infra.