Criminal Defense of Immigrants



 
 

§ 5.8 (B)

 
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(B)  Minimizing Collateral Immigration Consequences.  For immigrants, adverse immigration consequences are frequently the most important consequences of a criminal case, often more important than the direct criminal consequences, and more important than other collateral consequences.  See § § 2.2-2.14, supra.  Defense counsel has an obligation to investigate, advise the defendant concerning, and attempt to avoid these adverse immigration consequences if possible.  See Chapter 2, supra.

 

                (1)  Avoiding a conviction if possible.  There are a number of non-conviction alternative dispositions available in a criminal case, depending on the jurisdiction.  Avoiding a conviction under the criminal law of the jurisdiction of conviction is not necessarily the same as avoiding a conviction under immigration law, as the two definitions of “conviction” are frequently not the same.  See § § 7.21-7.37, infra.

 

                (2)  Minimizing the seriousness of the offense of conviction, i.e., minimizing the maximum possible sentence for the offense, as well as any statutory minimum sentence that must be imposed.  A number of immigration consequences depend on the maximum possible length of a sentence of imprisonment that can be imposed on account of a conviction.  See § § 5.29, 10.19, 10.76-10.80, infra.

 

                (3)  Avoiding a finding of any sentence enhancements applicable to the offense of conviction.  These can be either recidivist enhancements, dependent on prior convictions meeting certain descriptions, or conduct-based enhancements, dependent on a true finding that the defendant committed certain conduct in the commission of the offense.  See § § 5.29, 10.56-10.60, infra.

 

                (4)  Minimizing the length of the actual sentence to incarceration (if any) ordered for the conviction.  The “sentence imposed” is one of the most important triggers of immigration conseqeunces, and a sentence is considered “imposed” for immigration purposes even if the court has suspended imposition or execution so the defendant does not have to begin serving it unless s/he violates probation and the suspended sentence is ordered executed.  Under immigration law, there is no difference between a suspended sentence and one that is ordered served immediately.  See § 5.29 and Chapter 10, infra.

 

                (5)  Minimizing the level of the conviction.  Counsel also seeks to minimize the level of the conviction.  Certain immigration consequences depend on whether the offense of conviction is considered to be a “felony” or a “misdemeanor” under either the law of the jurisdiction of conviction or under a uniform national federal definition of those terms.  See § § 10.21, 10.86-10.93, infra.

 

                (6)  Minimizing the restitution ordered.  Defense counsel also normally seeks to minimize the amount of restitution ordered as part of the sentence.  The restitution ordered may have some relationship with the concept of the “loss to the victim” resulting from the offense of conviction, which can have important immigration consequences.  See § § 10.82-10.85, 19.74, infra.

 

                (7)  Minimizing the fine imposed for the conviction.  This sentence element does not have any direct immigration consequences.

 

                (8)  Minimizing other direct and indirect criminal consequences of the conviction.  There are a number of other possible statutory benefits and detriments that can greatly affect the defendant’s welfare, including youthful offender laws, drug addict rehabilitation laws, and the like.  Counsel may also attempt to influence the place of service of any confinement, as well as eligibility for the granting of probation or parole, including any minimum time that must be served before release on parole, and rules relating to stays of service of imprisonment, concurrent, and consecutive sentences.  These may have some immigration consequences.  See § § 10.62, et seq., infra.  For example, a person is ineligible for naturalization while on probation or parole.  See § 24.13, infra.

 

Updates

 

Lower Courts of First Circuit

POST CON RELIEF " VEHICLES " VERMONT " NATIONAL " CORAM NOBIS MAY OFTEN BE USED WHERE TRADITIONAL STATE POST CONVICTION VEHICLES DO NOT APPLY
State v. Sinclair, 2012 Vt. 47 (2012) (the writ of coram nobis is available to pursue 6th Amendment claims for defendants who cannot file under the state PCR statute; the opinion reviews the state of coram nobis law in other jurisdictions, and declines to follow those that have limited or eliminated the availability of the writ (most notably California in an oft-cited decision, People v. Kim)).

Other

CRIMINAL DEFENSE OF IMMIGRANTS " COLLATERAL CONSEQUENCES " RESTORATION OF RIGHTS AND STATUS AFTER CONVICTION
On Dec. 22, 2011, the National Association of Criminal Defense Lawyers (NACDL) announced that the consequences of conviction " specific legal barriers, generalized discrimination, and social stigma " have become more numerous and severe, more public, and more permanent. The legal mechanisms relied on in the past to restore rights and status " pardon, expungement, certificates of good conduct " have atrophied or become ineffective, with the result that a significant percentage of the American public is permanently consigned to second class citizenship. As a result, it has created a Task Force on Restoration of Rights and Status After Conviction. For more information, see http://www.criminaljustice.org/criminaldefense.aspx?id=23270

 

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