Criminal Defense of Immigrants

(B)  Examine Range of Possible Convictions.  Once the list of all likely or possible offenses of conviction has been compiled, counsel should evaluate them according to the following criteria:

                (a)  how safe is each as a safe haven?

(b)  how closely related is each to the offense committed?

                (c)  what are the adverse criminal consequences of each?

                (1)  Immigration Safety.  Some of the convictions may be aggravated felonies or otherwise fatal to the client’s chances of remaining in the United States legally.  Others may not be absolutely fatal, but still trigger some ground of removal.  These may be called “partial safe havens.”  The client may be removable, but not disqualified from obtaining some form of immigration relief from removal.  A companion volume of “safe havens” surveys each of the 52 different grounds of deportation (but not inadmissibility) to describe dispositions that do not trigger them.[25]

                Another factor to consider is the strength of the argument that the conviction does not trigger deportation.  Some convictions may be extremely safe, in that they are so far from falling into any ground of removal that no DHS officer or immigration judge would ever conclude that the conviction triggered removal.  Other arguments may be 50/50: arguments that immigration counsel may well win, but may well lose.  Still other arguments may have only a 10% chance of persuading an immigration judge or federal court judge that the conviction is not deportable.

                (2)  Factual Relationship Between Safe Haven and Charged Offenses.  A second major factor is how closely related the conviction is to the offenses charged by the prosecution.  The closer the factual nexus between the safe haven and the offenses the defendant in fact committed, the more likely it is that the prosecution and court will accept the safe haven as a plea bargain.  See § 8.65, infra.

                (3)  Adverse Criminal Consequences.  The client will have to suffer the conviction for the safe haven, and will have to serve the sentence.  The more serious the criminal consequences of the conviction, the harder it will be for the defendant to accept that outcome.  For example, the client will not likely accept a disposition involving the death penalty, even though it may be a non-deportable safe haven.  On the other hand, the client may very well be willing to spend several months or even years in custody on the assurance that deportation will not follow.  The sliding scale of seriousness of the criminal consequences is a factor for the client to consider in deciding whether the safe haven is acceptable to him or her.  See § 3.24, supra.

[25] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions, Chapter 7 (2005).