Criminal Defense of Immigrants
§ 6.18 B. Plea Negotiations
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The immigration consequences of the case will often play a very important role in plea negotiations. Because mandatory detention can be decisive on a client’s willingness to remain in the United States to attempt to avoid deportation, counsel should pay careful attention to attempting to obtain a disposition in the criminal case that will not trigger mandatory immigration detention. Even if the client is able to obtain a non-mandatory detention disposition of the criminal case, it is possible that the DHS will overcharge the case, allege a ground of mandatory detention, and maintain the client in mandatory detention by seeking and obtaining an automatic stay of an immigration judge’s release order pending decision of the appeal by the Board of Immigration Appeals. See § 6.43(B), infra.
A list of dispositions that should not trigger mandatory detention is given in § 6.40, infra. See generally Chapter 8, infra, on Plea Bargaining. It is also possible to attempt to negotiate a plea agreement to be deported in lieu of serving a sentence. See § 10.40(D), infra.
CATEGORICAL ANALYSIS " FACTS V. ELEMENTS " MODIFIED CATEGORICAL ANALYSIS
Rosario v. Holder, 655 F.3d 739 (7th Cir. Aug. 24, 2011) (The modified categorical approach does not permit examination of the charging instrument and plea agreement for the purpose of learning the specific facts of a specific conspiracy, such as the fact that this specific conspiracy involved a prostitution business, or what the defendant's specific role was in aiding and abetting that conspiracy.).
CAL CRIM DEF " SAFE HAVENS " FALSE IMPRISONMENT
A conviction of false imprisonment, under Penal Code 236, 237, committed by menace is not a crime of moral turpitude. Turijan v. Holder, 744 F.3d 617, 621 (9th Cir. 2014). This offense also arguably does not constitute an aggravated felony crime of violence, under 18 U.S.C. 16(a), 8 U.S.C. 1101(a)(43)(F), since there is no element requiring the intentional use of violent force. Moreover, it cannot constitute an aggravated felony crime of violence under 16(b), because the Supreme Court found the ordinary case analysis to be unconstitutionally vague. See Johnson v. United States, 576 U.S. ___ (June 26, 2015). CALCRIM 1240, defining some of the elements of felony false imprisonment, provides: Violence means using physical force that is greater than the force reasonably necessary to restrain someone. Menace means a verbal or physical threat of harm[, including use of a deadly weapon]. The threat of harm may be express or implied. Under the categorical analysis, the minimum conduct sufficient to convict of this offense by means of menace requires threat of harm, but not use or threat to use intentional violent force. Harm or injury is different from violent physical force. See Leocal v. Ashcroft, 543 U.S. 1 (2004).
POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " RETROACTIVITY
In re Jagana, 170 Wash.App. 33 (Div. 1, Aug. 13, 2012) (Padilla is both a significant change in the law, and thus an exception to the one-year state bar against collateral review of final judgments, and an old rule allowing retroactive application).
DETENTION - CONDITIONS OF CONFINEMENT
June, 2007 ACLU briefing on conditions of confinement in immigration detention centers. "This briefing paper explains the domestic standards for detention conditions and demonstrates the pervasive problems with conditions of confinement that immigration detainees face in jails and detention facilities across the country. The paper aims to illustrate the widespread human rights violations that migrants face while in the custody of the United States and offers recommendations for improved conditions and effective oversight of detention conditions." http://www.aclu.org/pdfs/prison/unsr_briefing_materials.pdf
DETENTION - CONDITIONS OF PLEA AGREEMENTS
Criminal defense counsel should be careful when including in a plea agreement an agreement not to contest removability. An agreement not to contest "removability" means that a noncitizen will not contest a finding by the court that they are subject to a ground of deportation, but arguably allows the noncitizen to make an application for relief from removal before the immigration court.
An agreement not to contest "removal," on the other hand, may be interpreted to mean that the noncitizen cannot make an application for relief, even if they are otherwise eligible. Thanks to David Gragert.