Criminal Defense of Immigrants


§ 5.9 (B)

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(B)  The Client Must Decide Defense Priorities.  This is a highly individualized decision that must be submitted to the defendant.  Counsel cannot make this decision for the client, or assume the client wishes to minimize the custody time.  It remains true, however, that the permanent immigration consequences greatly outweigh the criminal consequences in the vast majority of all criminal cases.  This means most defendants, who are brought to understand the exact meaning of the adverse immigration consequences of a proposed plea bargain, will be willing to sacrifice traditional criminal defense goals in order to protect their immigration status.  They will choose:


(a)       to serve greater time in custody, if a plea to a non-deportable offense can be arranged;

(b)       to plead guilty to two offenses, instead of one, if necessary to protect their immigration status; and

(c)        to plead guilty to a greater offense, that carries a longer maximum prison sentence in the event of a probation violation, to avoid adverse immigration consequences.


Seeking these dispositions runs counter to everything criminal defense counsel have come to assume, but they must learn to think outside the box of ordinary criminal defense strategy in order to accommodate the necessities and choices of immigrant clients.


                Moreover, counsel must often educate the client on the necessity to prioritize long-term goals, such as staying in the United States or obtaining lawful status here, even if it means sacrificing short-term goals, such as getting out of custody at the earliest possible time.