Criminal Defense of Immigrants


§ 8.16 (B)

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(B)  Factors Influencing Prosecutorial Discretion.  Among the normal factors affecting exercise of prosecutorial discretion, [45] several have particular importance to noncitizen defendants.


                (1)  How High Are the Stakes?  In many cases, the importance of the immigration consequences raises the stakes for the defendant far higher than would be the case for a defendant in the same case who is a citizen of the United States and need not be concerned with immigration consequences. For example, in a misdemeanor case, most defendants will not take the case to trial if a plea bargain is offered with a modest level of punishment that is tolerable.  On the other hand, a noncitizen defendant who would be deported permanently as a result of a no-jail misdemeanor conviction will rightly devote far greater resources to obtaining a non-deportable disposition.  This means the defendant will investigate the case more thoroughly, hire better qualified criminal defense counsel, and take the case to trial more frequently than his citizen companion.  This may require the prosecutor to devote more resources to obtaining a conviction than s/he is willing to do in light of the very high caseloads in misdemeanor departments.


                (2)  Can The Prosecutor Sympathize With the Client’s Desire to Remain in the United States? The prosecutor will be less willing to devote great resources to a minor prosecution if s/he can be made to understand that the defendant is placing this case on a very high plane of importance because the defendant is fighting to remain with spouse and children, i.e., anyone would fight to keep the family together.


                (3)  Threat of Deportation.  If the prosecutor can be convinced that the defendant will certainly be deported if s/he violates probation, and receives a longer sentence for the probation violation, the prosecutor may be willing to agree to a shorter, non-deportable sentence in the first place.  The prosecutor’s legitimate interest in social control can be met by the threat of deportation instead of the special deterrence from committing additional offenses that would arise from a longer initial sentence.


                (4)  Interests of the Victim.  In many cases, the victim has a strong interest in avoiding the deportation of the defendant.  In this era of victim’s rights, the prosecutor should give substantial weight to this factor.  The ABA Standards on the Prosecution Function, as well as the NDAA’s National Prosecution Standards, both recognize the importance of consideration of this factor.[46]  See § § 8.19(B)(5), 8.30, infra.


                (5)  Characteristics of the Offender.  The prosecutor will generally concede that the character and situation of the defendant is one factor to consider in exercising prosecutorial discretion.[47]  This gives counsel the opportunity to ask the prosecution to take into account the defendant’s immigration status, the immigration consequences of the prospective conviction on the defendant and his innocent family, and what will happen to the defendant if s/he is deported to the country of origin.  The ABA Standards on the Prosecution Function, as well as the NDAA’s National Prosecution Standards, both recognize the importance of consideration of this type of factors involving the character and situation of the defendant.[48]


                (6)  Prosecution Duty to Consider Non-Conviction Dispositions.  The prosecution also has a duty to consider alternative dispositions to a conviction.  See § 8.62(C), infra.


[45] See A. Amsterdam, I Trial Manual for the Defense of Criminal Cases [100], p. 174 (1988); D. Rossman, Criminal Law Advocacy: Guilty Pleas § 8.03[2] (1983).

[46] Ibid.

[47] G. Herman, Plea Bargaining § 3:02(a), p. 15 (2d ed. 2004).

[48] Ibid.



Ninth Circuit

Morgan v. Gonzales, __ F.3d __, 2007 WL 2127707 (9th Cir. Jul. 26, 2007) (United States is not estopped from removing an aggravated felon based on governments alleged agreement not to deport him in exchange for his cooperation in a federal drug prosecution where there was no claim that an official having the authority to do so made a specific promise of such relief).


Although Padilla does not require prosecutors to consider immigration consequences, it certainly encourages them to consider such consequences during plea negotiations. The decision states that informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea- bargaining process. Padilla, 2010 U.S. LEXIS at *30. The Court recognized that immigration consequences often stem directly from criminal convictions, and are often even more important to a defendant than the criminal sentence he faces. Id. at *21. In light of the Padilla decision, defense counsel should encourage prosecutors to consider the immigration consequences to noncitizen clients during plea negotiations.