Criminal Defense of Immigrants


§ 5.18 (E)

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(E)  Setting Realistic Goals.  Once the full scope of the immigration problems caused by the criminal history has been identified, counsel must assist the client in choosing realistic goals of the criminal representation.  These goals will always include the normal criminal goals of minimizing the crime and minimizing the time.  In addition, however, the following immigration-related goals are possible.


                (1)  Avoiding Immigration Arrest.  Avoiding arrest may often be accomplished, at least temporarily, by avoiding a sentence to incarceration in a jail facility visited by immigration officials during the time the client is incarcerated there.  This can seldom be more than a short-term goal, because the client will of necessity come to the attention of the DHS and suffer immigration arrest, if deportable or inadmissible, whenever incarcerated for any significant length of time in a normal jail or prison, as well as whenever it is necessary for the noncitizen to visit DHS offices to seek a new green card or other immigration benefit, such as naturalization.  In addition, it will be impossible for the client to leave or re-enter the country through normal lawful channels.  Finally, it is increasingly necessary to have current documentation of lawful status in order to obtain employment or a driver’s license.  Any “under the radar” solution is not very desirable from the client’s standpoint.


                (2)  Maintaining Lawful Immigration Status.  If the client has lawful immigration status, such as a green card (lawful permanent resident status), or a valid non-immigrant visa, the client will normally wish to preserve this status and avoid deportation.  This goal is often more important to the client than avoiding the more modest forms of criminal punishment.  This goal is most often achieved by avoiding deportability.


                (3)  Freedom to Travel.  Many clients who are here lawfully will not be satisfied by merely avoiding deportation.  They will often want to be free to travel outside the United States, and return freely to their homes here, which means avoiding inadmissibility.  A parent may get sick in a foreign country, requiring the noncitizen to travel abroad.  If the client is inadmissible, the client can leave but may not be able to return to the United States, even if s/he has a green card or other lawful status in the United States.  Avoiding inadmissibility is also necessary to obtain many forms of immigration benefits, such as naturalization to United States citizenship.


                (4) Eligibility for New Immigration Status.  Finally, the client may wish to obtain or preserve eligibility for new, improved immigration status, such as naturalization to United States citizenship.


                The client’s criminal history, and the immigration problems created by it, together with the possibilities for immigration relief in immigration court, will determine what realistic immigration-related goals can be set by counsel and the client for the representation.