Criminal Defense of Immigrants

As a result of developing a strategy as outlined in Chapter 5, supra, counsel will have a target disposition in mind.  See § 8.10, infra.  If the best possible disposition cannot be negotiated, there will normally be a range of other possible dispositions, that should be ranked in order of preference, for counsel to try to obtain during plea bargaining. See § 8.11, infra.

                Pleas of guilty resolve the vast majority of criminal cases, on the order of 95%.  In a case with immigration overtones, most of the normal plea-bargaining tactics will apply, but with some differences.  The task here is to negotiate prosecution and court agreement to the safest possible disposition among the range of possible safe havens identified through the analysis described in Chapter 5, supra.

                It is far easier to construct a safe haven disposition in a criminal case before a conviction has occurred.  The defendant enjoys a better bargaining position, prior to conviction, for a number of reasons.  The case is still open, and criminal practice often allows considerable freedom in selecting one or more offenses to which to enter a plea.  See § 8.16(A), infra.  If there are a number of charges pending, the prosecution is often willing to accept a plea of guilty to one or more charges, and in return to dismiss others.  If the defendant is willing to agree to serve the sentence the prosecution wants, the prosecution will often be willing to show flexibility concerning the offense of conviction so long as the plea is entered to an offense roughly equivalent in seriousness to the offense the prosecution originally wants as a conviction and there is some factual basis for the plea.

                The defendant also enjoys the bargaining power attendant on the right to take the case to jury trial, a very rare, expensive and time-consuming procedure.  The prosecution and courts have the resources to conduct jury trials in only five percent or so of the criminal cases in which charges are filed, so there is often a great incentive on their part to avoid jury trials wherever possible.

                Before conviction, the defendant who realizes the importance of avoiding a removable conviction can marshal whatever resources are necessary to avoid an immigration tragedy.  Criminal courts and prosecutors are often overwhelmed by the volume of criminal cases they wish to process, and a defendant who realizes that a removable conviction may be equivalent to lifetime banishment away from home and family can frequently mobilize sufficient resources to force or persuade the court or prosecutor to allow a plea to an equivalent non-deportable conviction, so long as the defendant is willing to serve a sentence approximately equal to the sentence they feel is appropriate without consideration of the immigration consequences.

                In this context, the chances the court and prosecution will agree to a safe haven disposition are greatest when defense counsel can identify a disposition that meets as many of the following criteria as possible:

                (1)  the safe haven offense should be as serious as, or more serious than, the offense to which a plea is offered by the prosecution, as defined by the maximum possible sentence;

                (2)  the safe haven conviction should not trigger any conviction-based or conduct-based ground of removal;

                (3)  the safe haven sentence should be as serious as, or more serious than, the sentence offered by the prosecution;

                (4)  the safe haven offense should be one that was in fact committed by the defendant, or at least one that is reasonably related to the offense committed by the defendant.  See § 8.11(C)(3), infra.

                These factors may be more or less present in a given case, depending on the strength of the defendant’s equities, the strength or weakness of the prosecution’s case, the overall seriousness of the offenses committed, the relative culpability of the defendant, and the like.  See Appendix F, infra.

                Because the situation is so much more fluid prior to conviction, every effort must be bent toward obtaining a safe haven disposition prior to conviction if at all possible, since it will only become more difficult for the defendant to do so after conviction.  If a safe haven cannot be arranged prior to conviction, it is unlikely the situation will improve after conviction, although post-conviction relief remains a possibility.[14]

[14] See N. Tooby, Post-Conviction Relief for Immigrants (2004).