Criminal Defense of Immigrants
§ 8.4 B. Research
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Because the avoidance of adverse immigration consequences is often central to the plea negotiations for noncitizen defendants, counsel must do the legal research personally, or consult with immigration counsel expert in criminal issues involving immigrant defendants, to answer the questions concerning the exact adverse immigration consequences of:
(1) a conviction of each offense charged,
(2) a conviction of each lesser included offense,
(3) a conviction of each alternative or additional offense that might be charged on the basis of the underlying facts of the case,
(4) each existing conviction in a prior criminal case; and
(5) each conviction originally charged in each prior case (even if a conviction did not result) if it is contemplated to attempt to reopen the prior conviction in order to avoid its immigration consequences.
In addition, it is wise for counsel to conduct research concerning the factual consequences of deportation of the defendant to the specific country of origin. For example, if the client has a political asylum claim in immigration court, it may be wise to document the torture or persecution to which the client would be subjected if deported to the home country. This information may be useful in plea negotiations, even if the client’s asylum claim might not prevail in immigration court. Some countries, such as El Salvador, inflict informal or formal penalties on their citizens who are deported from the United States on criminal grounds. These harsh practical consequences of deportation may be persuasive with court or prosecution as mitigating facts in attempting to negotiate a non-deportable disposition in a current case or in seeking post-conviction relief from a prior conviction. See § 3.61, supra.