Criminal Defense of Immigrants

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.