Criminal Defense of Immigrants

(B)  Counsel’s Obligations at Sentencing.  At sentence, defense counsel must determine whether the client will be eligible for certain standard programs that might be denied to a noncitizen with an immigration hold, and inform the client what to expect from administrative prison decisionmaking on these questions.  This forms part of counsel’s general obligation to do a competent job of assisting the client to obtain the best sentence possible.  Moreover, because plea bargaining frequently is conducted in light of, and to determine, the exact sentence the client will receive, the likelihood of an immigration hold must be investigated prior to plea bargaining.  Competent counsel will not, for example, negotiate a sentence on the assumption the client will be eligible for release on probation, or to a halfway house, or to sheriff’s parole, or to a drug rehabilitation program, if the client will be ineligible, on account of an immigration hold, to participate in these programs.  A defendant would be entitled to withdraw the plea, or vacate the sentence, under these circumstances if the program for which the hold disqualified him or her played a significant role in the decision to enter a plea agreement.  See § § 2.32, 2.37, supra, and N. Tooby, Post-Conviction Relief for Immigrants § 7.76 (2004).

          A sentencing court may grant a noncitizen convicted of illegal re-entry a downward departure under U.S.S.G. § 5K2.0 on the basis of the defendant’s alienage when that status directly affects the conditions under which s/he will serve the sentence.[88]  The sentencing court may, for example, devise a sentence of supervised release, including a period of rigorous home detention, for the noncitizen.

          See generally Chapter 10, infra, on handling a sentencing proceeding to minimize immigration consequences.

[88] United States v. Bakeas, 987 F. Supp. 44, 62 (D. Mass. 1997); see United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994); United States v. Farouil, 124 F.3d 838 (7th Cir. 1997); United States v. Simalavong, 924 F. Supp. 610, 613 (D. Vt. 1995).