Determine the strength of the client’s ties to this country, and find out how important it is to the client to be able to remain legally in this country, or to immigrate legally to this country in the future (if the client is undocumented).    See § 3.17, supra.  Learn the basic facts necessary to enable you and your client to balance the two distinct goals of (a) minimizing the conviction and sentence, versus (b) minimizing the immigration effects of the case.

 

                It is important to realize that because of post-traumatic stress, the client may not be sufficiently assertive concerning the desire to remain in this country.  If the client has immigrated illegally, that fact alone strongly suggests that it is very important to the client to remain here because of the hardships and dangers the client was forced to endure during the immigration.  Do not assume that because the client is undocumented, s/he cannot immigrate legally and obtain a green card if the criminal case is handled properly.[7]

 

                Sometimes, it is necessary to offer the prosecution an incentive in order to motivate the prosecution to agree to a disposition that avoids adverse immigration consequences.  This can take the form of pleading guilty to two offenses instead of one, pleading to a felony instead of a misdemeanor, or agreeing to serve extra time in custody in return for the necessary disposition.  Since criminal defense counsel normally seek to avoid these outcomes in a criminal case, we are sometimes slow to understand or agree to pursue them even where they may be necessary prices to pay in order to obtain a nondeportable result where the immigration consequences are the dominant consideration for the client. 

 

                The bottom line is that the client must be offered the alternatives, but criminal counsel should be perfectly open to asking the prosecution to accept a plea to more offenses, greater offenses, or a longer sentence where necessary to achieve the client’s objectives.

 

                In addition, the client may be so terrified of jail that getting out (the short-term goal) is all s/he can think of.  To take a disposition that may result in a relatively short time in custody, but permanently forfeit the freedom to live in the U.S. with spouse and U.S. citizen children, may be a poor bargain.  Counsel has a responsibility to assist the client to take the long view, to make sure s/he understands the long-term immigration consequences of any proposed disposition, so s/he does not later regret the choice.

 

[7] A client can obtain a green card through suspension of deportation or adjust status through a family visa petition, for example.  See Chapter 24, infra.

CRIMDEF - CONTACT WITH IMMIGRATION AUTHORITIES
CBP Inspector's Field Manual on the web: http://millerlawoffices.com/publications/CBP/CBP%20IFM%20Feb%201%202008.pdf