Criminal Defense of Immigrants

This chapter will begin with a detailed treatment of the criminal defense of the current criminal case.  See § § 5.5-5.32, infra.  The first consideration is to identify the different basic goals of the representation: minimizing the criminal results, see § 5.7, infra, minimizing the immigration outcomes, see § 5.8, infra, and balancing the competing interests.  See § 5.9, infra.  The five basic steps to formulating a strategy will then be considered, see § § 5.10-5.15, infra.

                The procedure for development of a strategy will then be outlined: preparing a chronology, see § 5.17, infra, analysis of the immigration problem, see § 5.18, infra, finding a solution, see § 5.19, infra, and evaluating the chances of success.  See § 5.20, infra.  Separate discussions are offered concerning how to analyze the possible dispositions so as to avoid deportability, see § 5.22, infra, inadmissibility, see § 5.23, infra, and eligibility for relief in immigration court.  See § 5.24, infra.  Finally, we will discuss how to handle the defense of multiple criminal charges or cases.  See § 5.25, infra. 

                A chief skill is the identification of a safe haven, i.e., a disposition that will not trigger immigration damage.  See § § 5.26-5.31, infra.  After one has been identified, it is necessary to construct a safe haven, out of the building blocks that are considered part of the “record of conviction” by the immigration authorities.  See § 5.32, infra.  See generally, N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Nondeportable Convictions (2005).

                Part III of this chapter focuses on development of a strategy for obtaining the necessary post-conviction relief from the immigration consequences of a criminal case.  See § § 5.33-5.42, infra.  This involves listing all of the client’s immigration-significant prior criminal cases, see § 5.34, infra, determining the immigration effect of each and of all acting together (including the outcome of the current case case as well), see § 5.35, infra, determining the minimum change in the criminal history that is necessary to avert the immigration damage, see § 5.36, infra, identifying the ingredients for success in obtaining the necessary post-conviction relief, see § 5.37, infra, and evaluating the chances of success in doing so.  See § 5.38, infra. 

                It is then necessary to consider the likelihood of reprosecution of the criminal case after the conviction has been vacated.  See § § 5.39-5.42, infra. 

                Last, counsel must conclude the representation, by obtaining the certified copies of the final disposition of the criminal cases that immigration counsel will need to establish it to the satisfaction of the immigration authorities, see § 5.37, infra, and giving parting advice to the client.  See § 5.45, infra.