Criminal Defense of Immigrants


§ 5.9 (A)

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(A)  The Adverse Immigration Effects Of A Criminal Case Are Often Far Worse For The Client Than The Criminal Sentence.  The normal criminal effects are frequently secondary, such as where the criminal sentence is relatively harmless (e.g., probation with no jail), but the automatic and unavoidable immigration effects of the conviction are life-shattering and permanent deportation.  See Chapter 2, supra.  In these cases, the criminal defense strategy should be directed primarily to avoiding the immigration consequences, and only secondarily to minimizing the criminal judgment or sentence.


                It is common for the immigration consequences to outweigh the criminal consequences in the following situations:


(1)        all misdemeanor cases;

(2)        all probation felony cases; and

(3)        all minor felony cases, even if the defendant receives a sentence of several years in prison.  This custody time will pass, whereas deportation is usually permanent and irreversible.


Where a state prison sentence of four or five years is imposed, sometimes the immigration and criminal consequences may be equivalent.  It would not be uncommon for some criminal defendants to choose to receive a shorter prison sentence, even if it meant permanent deportation, whereas other defendants would take the long view and be willing to spend more time in custody in order to avoid deportation.  In cases involving longer prison sentences, more defendants will strike the balance in favor of minimizing the prison time if possible, even if it means automatic deportation.  In life sentence and capital cases, of course, the defendant will typically seek to minimize the prison sentence if possible, even if it means accepting deportation.