Criminal Defense of Immigrants


§ 3.12 1. Basic Immigration Status Questionnaire

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Appendix A, the Basic Immigration Status Questionnaire, is provided as a tool for obtaining from your client the information that immigration counsel will need in order to analyze the client’s vulnerability to immigration consequences of a conviction.


                Obtain any immigration documents that the client has, including the passport, and xerox them.  You will need to know the client’s entire criminal history, so it is a good idea to get the client’s rapsheet before calling immigration counsel.  You will also need to specify the current offense(s) with which the client is charged, and what alternative pleas may be offered. 


                Has an immigration hold been placed on the client?  Clients should be made aware that they will need separate immigration counsel to represent them in immigration court.


                How long has the client lived in the United States?  When did s/he first enter the United States?  If this first entry was legal, what documentation did s/he possess which permitted entry?  How many times has s/he left the United States since the first entry, and what was the date, length, and purpose of each departure?  When was his or her most recent entry to the United States, and was s/he inspected at the border?  If so, with what type of permission was this entry allowed? 


                Is the client now, or has s/he ever been, a permanent resident?  If so, when did s/he obtain a green card?  (The date of adjustment to permanent residency will appear on the person’s green card.)  Is or was the person a temporary resident or applicant for temporary residency under an amnesty program?  Was it the 1/1/82 legalization program,[24] or the SAW farmworker program?[25]  Was the application successful?  If the client is not a legal resident, but has a visa or employment authorization, what type is it?  When was it obtained, and when does it expire?  Does s/he have refugee or asylee status in the U.S.?  When was this obtained? 


                Inquire whether anyone ever filed a petition for a visa (or residency status) for the client.  If this is the case, who was the petitioner?  Was the petition granted?  When?


                Has the client ever appeared before an immigration judge?  If so, for what reason?  What were the dates of INS court appearances?  Has the client ever been deported or left the U.S. under voluntary departure?  It is important to learn not only if the client was ordered deported, but also if s/he physically left the country due to deportation.


                Note: Often people escorted out of the U.S. by the DHS do not understand whether they are being deported or taking “voluntary departure.”[26]  Deportation generally cannot take place unless a client is first brought before an immigration judge.[27]  Many clients from Mexico accept voluntary departure after being arrested by the DHS and being persuaded to sign a waiver form and accept a bus ride across the border.  This is not deportation.[28]  INS or FBI records provide a definitive answer.[29]


                Does the client have an upcoming immigration court date?  When?  For what reason?  Is this his or her first court appearance, or has s/he already received a continuance?  If the client has an INS court date pending, it is important, again, to emphasize that s/he should contact an immigration lawyer immediately if s/he has not already retained one.  See § § 15.23-15.40, infra.


                If the client has previously received some sort of prior immigration relief such as a waiver of deportability or suspension of deportation, this should be recorded on the form, along with the date upon which this relief was granted.


                Is the client married?  If so, for how long?  Is the client’s spouse a U.S. citizen, by birth or naturalization?  If not, what is the immigration status of the spouse?  Does the client have any children?  If so, how many?  What is the age and immigration status of each child?  What other close relatives of the client live in the U.S.?  What is the immigration status of the client’s parents, siblings, etc.? 

                Was the client’s parent or grandparent born in the U.S. or granted U.S. citizenship?  Is this true of a parent or grandparent of the client’s spouse?  Was the client a lawful permanent resident under the age of 18 when a parent naturalized to U.S. citizenship?  These questions relate to the possibility that the client might have become a U.S. citizen without knowing it.[30]  In order to verify whether this is the case, consult an immigration attorney who has some expertise in the area of unknown citizenship.


                Who is the client’s employer, and what is the client’s position of employment?  Would the employer help him or her to immigrate?  (For most non-professional workers, this may yield few results, but it may be worth a try anyway.)


                Has the client ever been abused by a spouse or parent?[31]  Did this abuse occur in the U.S. or in the country of origin?


                What country is the person a citizen of?  In what country did the person last reside?  Does the client come from a country that has civil war, human rights violations, or recently suffered a serious natural disaster?  Does the client have any worry about returning?  If so, what is the specific reason for this worry?  See § § 24.7, 24.12, 24.18, 24.25, 24.31, infra.


[24] See § 24.10, infra.

[25] See § 24.11, infra.

[26] See § 15.16, infra.

[27] But see § 15.22, infra.

[28] See § § 15.29-15.30, infra.

[29] See K. Brady, Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws § § 8.8‑8.9 (2007).

[30] See § § 3.15-3.17, infra.

[31] See § 24.26, infra.




The Immigrant Legal Resource Center has produced an Interactive Questionnaire for Immigration Analysis of criminal cases with immigration issues. See Here is a fillable form, to enable defenders to more easily capture information for an immigration analysis.