§ 5.9 3. Balancing Conflicting Goals
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Where the two differing goals of criminal defense of a noncitizen are in conflict, it is necessary to balance them against each other, and decide what course of action to pursue. This can require criminal counsel, on occasion, to pursue very counterintuitive strategies of agreeing to harsh criminal sentences in order to avoid harsher immigration consequences. For example, if the immigration consequences outweigh the criminal consequences, it may be necessary to persuade the prosecution to agree to a non-deportable disposition by offering (a) two convictions instead of one, (b) a felony conviction, instead of a misdemeanor, or (c) a longer sentence instead of a shorter one. This may be in the client’s interest because the criminal damage is far more minor than the immigration consequences.