Criminal Defense of Immigrants

(B)  Countering Prosecution Arguments.  Issues to cover when negotiating with prosecutors, either to obtain a safe plea bargain that will not result in adverse immigration consequences, or when trying to negotiate the reopening of a case via post-conviction relief for the same purposes, include the following:

(1) It is legitimate to negotiate dispositions in light of the immigration consequences to the defendant and innocent family and friends;

(2) Prosecutorial discretion is broad enough to take into account totality of the circumstances;

(3) It is not proper or realistic to act as if the immigration consequences do not exist;

(4) There is a public interest only in punishing the defendant, but not in punishing his or her innocent family;

(5) The victim very often has a strong interest in avoiding the deportation of the defendant, e.g., in DV cases to preserve the parent-child relationship and continue to obtain child support from the defendant, which would terminate upon deportation, and the prosecution should take the victim’s interest into account.  See § § 8.16(B)(4), supra; 8.30, infra.

(6) It is appropriate to differentiate between good guys and bad guys, and to reward defendants who successfully turn their lives around by offering flexibility in plea bargaining to avoid immigration consequences, or in negotiating post-conviction relief for the same purpose, and

(7) It serves the common interest in fairness to give the defendant accurate advance notice of all consequences, including the important immigration consequences, of the plea so the defendant can make an informed decision.

                For suggestions of other arguments, see § § 8.16(C), supra, 8.22(C), infra.