Criminal Defense of Immigrants


§ 3.3 B. The Timing of the Case

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Immigration consequences can also result in unusual decisions concerning the timing of the proceedings in a criminal case.  There are many time limits in immigration law, and the timing of a conviction can be absolutely critical.  See § §   11.59, et seq., infra.


                Assuming you have a client with no prior convictions, but with a pending drug charge alleging a deportable offense, the following steps must occur before the DHS can issue a final deportation order:


·              The client must choose to plead guilty or go to trial, be found guilty, and be sentenced, thus creating a “conviction” for immigration purposes.


·         All appeals must be waived or exhausted, so the conviction becomes “final” under state law.  See § 7.37, infra, concerning “finality of  conviction.”  Note that the finality requirement is not followed in all circuits.  After this point, the client is considered to have suffered a conviction of a deportable offense that is sufficiently final to allow the DHS to initiate removal proceedings.


·              The DHS must initiate removal proceedings by filing a Notice to Appear.


·              The DHS or immigration court may as a practical matter be willing to grant considerable continuances (even up to a year or more) to permit criminal defense counsel to pursue post-conviction relief with the potential of eliminating the conviction in question, although there is no right to any delay for this purpose and many immigration judges are unwilling to do so.  In the less usual case, in which state rehabilitative relief is sufficient to eliminate a minor first-offense drug conviction for immigration purposes,[3] immigration law allows the immigration judge discretion to grant continuances of removal proceedings for the defendant to complete probation and obtain the state rehabilitative relief so the ground of deportation will no longer exist.[4]  This result, as well, may have been altered by the BIA, although the Ninth Circuit suggested in dictum in the Lujan case that the DHS could not seek to deport someone during the time period before becoming eligible for an expungement.[5] 


·              The immigration court must complete removal proceedings and issue an order of removal.


                ·              Any appeal to the Board of Immigration Appeals must be dismissed                                     or terminated.  At this point, the deportation order becomes                                                                administratively final.  Note that the finality requirement is not                                               followed in all circuits.  See § 7.37, infra.


·              A motion to reopen removal proceedings may be filed within 90 days after the removal order becomes final.  If a conviction is vacated on a ground of legal invalidity within this 90-day period, deportation proceedings can be reopened and terminated and the client can remain lawfully in the United States.  Unfortunately, there is no guarantee the DHS will delay actual removal of the immigrant until this period of time has elapsed, so it may be necessary to apply for and obtain a stay of removal from the District Director of the DHS, from the immigration judge, from the Board of Immigration Appeals, or from the Circuit Court of Appeals.


                The timing considerations can affect the nature of a plea bargain.  For example, jury might be waived and a case might be submitted on the police reports, or the transcript of the preliminary hearing, in order to preserve the right to appeal without the need to secure a certificate of probable cause for appeal or other form of judicial permission.


                Where timing is an important factor, the closest cooperation is necessary between criminal defense counsel and immigration counsel, so that the client’s interests are protected at each stage of the process.  Under these circumstances, a client might rationally choose to litigate motions fully, take cases to trial, pursue appeals, or pursue post-conviction relief, even where they might not be pursued in cases in which the stakes were not so great.


                In other cases, the client may face other immigration deadlines of which criminal defense counsel should be aware.  It may be possible to obtain more time from the immigration court in which to investigate, research the case, and apply to the criminal courts for post‑conviction relief.


                For example, a lawful permanent resident can generally naturalize after having held a green card for five years.  Even if an offense has been committed, and a conviction has resulted, it is sometimes possible to terminate deportation proceedings to allow a pending naturalization petition to be granted.  Thus, if the criminal conviction can be delayed until the LPR has five years in status, s/he can then petition for naturalization, opening up the possibility of remaining in the United States.


                Similarly, a foreign conviction will constitute an aggravated felony only if the term of imprisonment for that offense was “completed within the previous 15 years.”[6]  Therefore, if the DHS does not begin removal proceedings until the conclusion of current criminal proceedings, the 15 years may elapse so the foreign conviction no longer constitutes an aggravated felony.


                Likewise, it may be essential to obtain enough time in the criminal courts before the client receives a final conviction in order to permit the client to obtain immigration relief based on having held a certain immigration status for a certain length of time.  For example, an immigrant will become eligible for a waiver of inadmissibility under INA § 212(h) if the activities for which the noncitizen is inadmissible occurred more than 15 years prior to the visa application.[7]  If removal can be delayed until this point is reached, perhaps the immigrant can apply for adjustment of status or naturalized citizenship and seek to eliminate crime-related grounds of inadmissibility by applying for this type of waiver.


                Under the “youthful offender” exception, a person will not be found inadmissible if s/he committed only one offense involving moral turpitude, while under the age of eighteen, and if the commission of the offense and the release from any resulting imprisonment occurred over five years before the current application.[8]   Thus, if removal can be delayed until five years after the client’s release from custody on the CMT conviction triggering inadmissibility, the conviction becomes subject to this exception to the CMT ground of inadmissibility, and ceases to create inadmissibility.


                The INS cannot begin deportation proceedings until a deportable conviction becomes final by waiver or exhaustion of direct appeal.  If the finality of the conviction can be delayed until the immigrant has served his or her criminal custody time (if any), the DHS cannot begin removal proceedings until the conviction becomes final.  This can have a great effect in precluding the government from applying the mandatory detention statute,[9] and can enable the immigrant to obtain release from immigration custody on bond.  Moreover, if the removal proceedings were not started, or were terminated, because a pending appeal renders the conviction non-final, the DHS may not become aware when the conviction is affirmed on appeal, and may therefore not begin deportation proceedings even after the conviction becomes final.  Note that the finality requirement is not followed in all circuits.  See § 7.37, infra.

[3] See § 11.20, infra.

[4] INS Operations Instructions 242.1a(28); Matter of Tinajero, 17 I. & N. Dec. 424 (BIA 1980), cited with approval in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[5] Lujan-Armendariz v. INS, 222 F.3d 728, 746 n.28 (9th Cir. 2000).

[6] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), paragraph following subparagraph (U).

[7] INA § 212(h)(1)(A)(i), 8 U.S.C. § 1182(h)(1)(A)(i).  See § 24.29, infra.

[8] INA § 212(a)(2)(A)(ii)(I), 8 U.S.C. § 1182(a)(2)(A)(ii)(I).  See § 20.30, infra.

[9] INA § 236(c), 8 U.S.C. § 1226(c).  See Chapter 6, § 15.21, infra.