Criminal Defense of Immigrants

(A)  Nature of Offense of Conviction and Sentence. Chapter 5 discussed how to generate a range of possible safe havens, ranked in order of preference.  Counsel should choose as a target disposition the safe haven likeliest to avoid deportation, or other adverse immigration consequences, provided it is a realistic goal as a settlement of the criminal litigation.  The tactical goal would therefore become obtaining the agreement of the prosecution and court to the entry of a plea to the safest realistic safe haven, with the lowest acceptable sentence.

                Counsel should carefully identify all essential elements of this target disposition.[15]  See § 5.32, supra.

                (1)  The statute of conviction.

                (2)  The offense of conviction within the statute, if the statute is divisible and contains more than one offense.  See Chapter 16, infra.

                (3)  The minimum elements of the offense of conviction.  See Chapter 16, infra.

                (4)  The maximum possible sentence to custody that can be imposed for the conviction, and still avoid deportation.  See Chapter 10, infra.

                (5)  The actual sentence to custody that will be imposed on account of the conviction, and still avoid deportation.  This includes (a) the level of the offense: whether it is a felony, misdemeanor, or lesser offense, and (b) any order of restitution that will be imposed.  See Chapter 10, infra. 

                (6)  Any other significant sentence elements must also be listed, such as any sentence enhancements, probation restrictions, registration requirements, and the effect of the conviction as a prior conviction in any future prosecution.  The other standard sentence elements in a criminal case should also be specified, such as amount of fine, restitution, length of probation term, conditions of probation, and the like, as in any other criminal case.

                Sometimes other factors can be important, such as the date of the conviction,[16] see § 8.10 (B), infra, or the date on which the offense of conviction — as opposed to the conviction itself — occurred.  See § 8.10 (C), infra.

[15] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § § 5.3-5.65 (2005).

[16] E.g., INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I) (conviction of crime of moral turpitude); INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (multiple convictions of crimes of moral turpitude “at any time after admission”); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony “at any time after admission”); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substances conviction “at any time after admission”); INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii) (drug abuser or addict who is or “at any time after admission has been” convicted); INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C)(firearms conviction “at any time after admission”); INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i)(domestic violence conviction “at any time after admission”).