Criminal Defense of Immigrants

(A)  In General.  Given this new realization of what is involved, the immigrant now seeks (a) to discover the actual immigration consequences of the criminal case, and (b) to avoid them if possible.  Sometimes it is possible for the immigrant to avoid these consequences in immigration court, through the aid of an immigration attorney.  While discretionary relief in immigration court from the adverse immigration consequences of criminal convictions and sentences has been greatly restricted, it still exists to a surprising extent.  See Chapter 24, infra.  Increasingly, however, the same harsh new immigration laws that impose drastic adverse immigration consequences as a result of a criminal case also foreclose any possibility of relief in immigration court.

                Under those circumstances, the only hope for the immigrant may be to pursue post-conviction relief in criminal court in an effort to set aside the conviction or sentence, and thereby avoid the adverse immigration consequences of the original disposition of the criminal case.  See Chapter 11, infra.

                This task can be very difficult, for a number of reasons.  Too much time may have passed for court and prosecution to be willing to reopen the case.  The client may have passed out of constructive custody, at which point there may be no jurisdiction to pursue habeas corpus, which is the normal vehicle for raising many claims such as ineffective assistance of counsel.  Insufficient time may remain before the immigration consequences become irrevocable.  The courts may be preoccupied with fresh cases, and have little patience or attention to devote to correcting past miscarriages of justice.

                Counsel’s tasks are as follows:

1.       To diagnose the immigration problem accurately, and determine the minimum changes in the criminal disposition (plea and sentence) necessary to avoid the immigration damage.

2.       To put the original criminal case under a microscope, and detect fundamental errors in the proceedings that are serious enough to warrant reopening the plea or sentence as necessary.[66]

3.       To identify a vehicle by which these errors may be raised in an effort to vacate the plea or sentence, or arrange the other changes in the criminal history that are necessary to resolve the problem.[67]

4.       To prepare, file, and litigate the post-conviction case to achieve the necessary changes.[68]

5.       Once the conviction or sentence has been reopened, to negotiate, or litigate to, a successful outcome of the criminal case that will avoid the immigration damage.[69]

6.       To provide immigration counsel with the necessary documentation and information concerning the new resolution of the criminal case that will enable him or her to win the case in immigration court.[70]

[66] See Chapters 7 (convictions) and 10 (sentences), infra.

[67] See Chapters 7 (convictions), 10 (sentences and reduction of level of offense, state rehabilitative relief and pardons), infra.

[68] See Chapter 11, infra.

[69] See § § 11.74-11.77, infra.

[70] See § § 11.78-11.80, infra.