Criminal Defense of Immigrants

 

“Equities” are facts that humanize the client, and constitute reasons why it is important for the client to be able to avoid the barbaric immigration consequences of the conviction.  Favorable equities are often as important, or more important, than a legal argument in avoiding adverse immigration consequences.  You can use equities to persuade judges, prosecutors, former defense lawyers, and others to support the client’s efforts to remain in the United States. 

 

                Common equities include:

 

                ·              The client has lived in the U.S. for many years.

 

·              The client has obtained (or at least tried to obtain) lawful immigration status here.

 

·              The client will be able to obtain or keep lawful status if the criminal case can be successfully resolved.

 

·              The client has numerous close relatives who live in the U.S. now and have lived here lawfully for many years.

 

·              Many of them are U.S. citizens or permanent residents, or are in the process of becoming so.

 

·              The client’s spouse and children are U.S. citizens or permanent residents, and it would be a hardship to divide the family and deprive the children of their parent, or, alternatively, to force innocent family members into exile with the person deported.

 

·              The client has long held a job here, and the family might be thrown onto welfare without the client’s economic support.

 

·              The client has many close friends here, and is an important and respected member of the community, active in church and community activities, etc.

 

·              The normal criminal sentence that U.S. citizens would serve (without adverse immigration consequences in addition) is a sufficient debt to society for the client to pay for the particular criminal offense.

 

·              The client has been rehabilitated since the offense, and has had a good record on probation, in custody, or on parole.

 

·              The victim of the crime (or the police officer, probation officer, etc.) is not in favor of deportation of the client.

 

·              If deported, the noncitizen’s spouse may no longer be able to collect child support.

 

·              The client will face persecution on account of race, political opinion, religion, sexual orientation, or will face danger, abuse, poverty, or unhealthy conditions if deported to the home country.

 

·              The client’s behavior was partly due to trauma caused by events that occurred in the home country, such as war, death or assassination of relatives, natural catastrophe, or poverty approaching starvation.[107]

 

·              The client has taken him- or herself in hand, turned his or her life around, is obtaining counseling, etc.  It may be helpful to suggest counseling or twelve-step programs to the client.

 

                These are only common examples.  Many other equities can be suggested to an imaginative mind, such as artistic, religious or philanthropic contributions, ownership of property or other ties to the community, and the like.

 

                IMPORTANT PRACTICE TIP:  In describing the client’s past life, do not make admissions concerning drug trafficking, addiction, or abuse, or of engaging in the business of prostitution.  The government could use such statements as a basis for deportation or exclusion, independent of any conviction.  See § 8.40, infra.[108]

[107] In fact, defendants from developing countries, and certainly countries of long civil war such as in Central America and Southeast Asia, often have endured terrible events through no fault of their own that in turn led to emotional problems and criminal acts.  Often such people made valiant attempts to save relatives in the home country, and showed great determination just to make it to the United States.  If the client is willing to discuss such events with you, it might prove helpful to provide a short description to the judge while emphasizing that the client has regained the will to persevere and wants to take advantage of American life.  Regarding extreme poverty, simple questions such as “When did you own your first pair of shoes?” or “What did you eat for breakfast, lunch and dinner?  Did you attend school?  When did you have to quit to help support the family?”  paint a vivid picture of life in rural areas or refugee camps.  It may well be that post‑traumatic stress disorder, resulting from traumatic experiences in the country of origin, provide explanation, defense, excuse, or mitigation to the criminal offense, and that psychiatric or psychological evaluation would yield valuable information and documentation.

[108] A number of grounds of deportation and inadmissibility are based on conduct, rather than a conviction.  See Chapter 17 and 18, infra.