Criminal Defense of Immigrants

(A)  In General.  Standard criminal defense arguments may be made if the client has maintained a good record since the incident giving rise to the charge, and the equities in his or her favor are strong.  The client can take a credible position of refusing to acquiesce in any outcome that will destroy the family and permanently exile the client to a foreign land.

                The client can also threaten to put prosecution and court to the extensive work and considerable expense of a jury trial, because the issue is so important to the client, unless a disposition with an acceptable immigration result is otherwise offered.  If the adverse criminal consequences are minor in comparison with the drastic immigration effects, the client may be perfectly willing to risk any downside (in terms of jail time, etc.) in order to obtain an opportunity to remain in this country.  (Any risks of adverse criminal consequences, of course, should be thoroughly explored with the client.)[63]

                In essence, counsel can bargain with the prosecutor and court concerning (a) the nature of, (b) the number of charges to which the client will plead guilty or no contest, and (c) the nature of the sentence the client will receive.

                To analyze goals for the new disposition, counsel should complete the Basic Immigration Status Questionnaire or the more extensive Intake form included in Appendix A.[64]  See Chapters 3, 5, supra.

[63] See Chapter 3, supra.

[64] See also the worksheets contained in K. Brady, Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws, Chapter 10 (2007).  Counsel may also review options discussed in K. Brady, Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws § § 8.27‑8.28 (2007).