Criminal Defense of Immigrants

 

In addition to normal criminal defense purposes, the basic goals of the first client interview are:

 

                a.             Determining citizenship of the client.  See § § 3.13, et seq., infra.

 

b.             Determining exact immigration status of noncitizen clients.  See § 3.21, infra.

 

c.             Obtaining information on equities, or reasons the client should be allowed to remain in the U.S.  See § 3.23, infra.

 

d.             Obtaining sufficient information from the client concerning criminal history so as to determine what computerized criminal history print-outs (rap sheets) to obtain.  See § 3.27, infra.

 

e.             Conducting the normal criminal defense interview concerning the facts underlying the current charge.  See § 3.26, infra.

 

f.             Determining the relative importance of immigration versus criminal defense goals to the client.  See § 3.24, infra.

 

g.             Advising the client how to respond to questions from authorities regarding immigration status:  i.e., to say nothing.  See § 3.22, infra.

 

h.             Determining the client’s needs for an interpreter: both the language and the specific dialect must be determined.  (It is also wise to discover whether the client is literate and in what language(s).)  See § 3.8, supra, and Chapter 4, infra.

 

                If the client is not a U.S. citizen or national, or is a U.S. citizen but stands in danger of losing that status through denaturalization,[14] because s/he falsified information on the naturalization application, or otherwise, then s/he is subject to immigration consequences of the criminal case.  See § 3.20, infra.

 

                This potential immigration jeopardy places the client in the position of needing to pursue two different and sometimes inconsistent goals:

 

(1)       The traditional criminal defense goals of minimizing the criminal conviction and minimizing the sentence, on the one hand, and

 

(2)       The immigration-related goal of minimizing the damage to the client’s immigration status flowing from the disposition in the criminal case.

 

                Many times, these goals flow together.  For example, a noncitizen who cannot avoid conviction of an offense that becomes an aggravated felony if a sentence of 365 days or more is imposed wishes to reduce the sentence at least to 364 days for immigration purposes, and obviously wishes to minimize the length of the sentence for criminal purposes as well.  In this instance, there is no inconsistency between the criminal and immigration goals.

 

                At other times, however, the criminal goals conflict with the immigration goals.  If the client is offered a deportable plea bargain, and cannot obtain relief from deportation in immigration court, then it is often supremely important to the client to obtain a change in the offense of conviction, or the sentence imposed, sufficient to avoid deportability.  In order to motivate the prosecution to agree to this change, it may be necessary to offer the prosecution a traditional criminal defense inducement such as:

 

(a)       Pleading to a more serious offense;

(b)       Pleading to two offenses instead of one;

(c)        Pleading to a felony instead of a misdemeanor; or

(d)       Agreeing to serve extra time in custody.

 

Since criminal defense counsel traditionally fight like the devil to avoid these outcomes in a criminal case, they are sometimes slow to understand or agree to pursue them even though they may be a necessary price to pay in order to obtain a nondeportable result.

[14] See § 3.20, infra.