Criminal Defense of Immigrants


§ 5.20 4. Evaluation of Chances of Success

Skip to § 5.

For more text, click "Next Page>"

When a safe haven or other solution to an immigration problem has been found in criminal court, counsel must evaluate the chances of success in obtaining it.  The same goes for a post-conviction solution, as well as for an immigration court solution.  If the chances of success are slim, that solution may not really be considered a solution, and other solutions must be found.  The normal factors counsel uses to evaluate chances of success in a criminal case will of course apply to this analysis as well.  In addition, counsel can consider the factors used to evaluate the chances of success in obtaining post-conviction relief from adverse immigration consequences.  See § § 11.38-11.58, and Appendix F, infra. 




Ninth Circuit

United States v. Roblero-Solis, 588 F.3d 692 (9th Cir. Dec. 2, 2009) (defendants' direct appeal from guilty plea and judgment is not moot, even though they have served their sentences and apparently been deported, because they continue to face various adverse consequences that will result even if they do not violate the law, such as longer periods during which they will be ineligible to enter the United States legally; in addition, "the Supreme Court recognized that a case was not moot when a state procedure cut off the possibility of appeal by the shortness of the sentence being appealed. Sibron v. New York, 392 U.S. 40, 42, 52-53, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Otherwise, it was reasoned, short sentences could short circuit any appeal and deprive defendants in "low visibility" cases of the chance of vindicating their rights under the constitution. (Citation omitted.) Although we do not reach a constitutional claim in this case, we believe that analogous considerations counsel treating as alive these cases where the "time served sentences" are so short that no appeal would be practicable.").