Criminal Defense of Immigrants
§ 5.28 (B)
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(B) Evaluation. Once the list has been compiled of all likely or possible offenses of conviction, it is necessary to evaluate them according to the following criteria:
(1) how safe is each as a safe haven?
(2) how closely related is each to the offense committed?
(3) what are the adverse criminal consequences of each?
(1) Immigration Safety. Some of the convictions will be aggravated felonies or otherwise fatal to the client’s chances of remaining in the United States legally. Others may not be aggravated felonies, but still fall into another conviction-based ground of deportation. These may be called “partial safe havens,” to signal that they do not trigger deportation under one or more grounds of deportation, but may or do trigger deportation under another ground. The client may be deportable, but not be disqualified from obtaining some form of immigration relief from removal, and thus some partial safe havens may be safe enough to enable the client to avoid deportation.
Another factor to consider is the strength of the argument that the conviction does not trigger deportation. Some convictions may be extremely safe, in that they are so far from falling into any ground of deportation that no DHS officer or immigration judge would ever conclude that the conviction triggered deportation. Other arguments may be 50/50: arguments that immigration counsel may well win, but may well lose. Still other arguments may have only a 10% chance of persuading an immigration judge or federal court judge that the conviction is not deportable.
(2) Factual Relationship Between Safe Haven and Charged Offenses. A second major factor is how closely related the conviction is to the offenses charged by the prosecution. The closer the factual nexus between the safe haven and the offenses the defendant in fact committed, the more likely it is that the prosecution and court will accept the safe haven as a plea bargain.
(3) Adverse Criminal Consequences. The client will have to suffer the conviction for the safe haven, and will have to serve the sentence. The more serious the criminal consequences of the conviction, the harder it will be for the defendant to accept that outcome. For example, the client will not likely accept a disposition involving the death penalty, even though it may be a non-deportable safe haven. The sliding scale of seriousness of the criminal consequences is a factor for the client to consider in deciding whether the safe haven is acceptable.