Criminal Defense of Immigrants

(C)  Arguments Why Prosecution Should Minimize Immigration Consequences.  Sometimes counsel will encounter a judge or prosecutor with a blanket policy against agreeing to provide immigration relief to noncitizens.  To attempt to persuade a court or prosecutor that it is appropriate to renegotiate a case in order to avoid unjustified immigration consequences, a number of arguments can be considered.  In those states, such as California, in which the Legislature has required the defendant be informed, prior to plea, of the potential immigration consequences, the following argument could be made:

In passing California Penal Code § 1016.5, effective January 1, 1978, the California Legislature has determined that in fairness to immigrant criminal defendants, the court must inform each defendant (citizens as well as noncitizens), that if they are not citizens of the United States, a plea to the specific offense charged may have the consequences of deportation, exclusion, and denial of naturalization.  (Penal Code § 1016.5(d) (emphasis supplied).)

The Legislature continued: “It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant’s counsel was unaware of the possibility of [the specified immigration consequences].”  (Ibid. [emphasis supplied].)  In other words, the Legislature anticipated that prosecution and defense would renegotiate the case, after the defendant learned of the immigration consequences, to enable the parties to achieve an appropriate criminal disposition without triggering adverse immigration consequences.  That appears to be the entire point of this legislation, and so it is hoped that the court will agree that renegotiating the criminal disposition, to avoid adverse immigration consequences, is an appropriate goal in the present case now that the defendant has been informed of the immigration consequences of the plea that were omitted in the original plea proceeding, and has become aware of the actual impact of the conviction upon his immigration status.

                Federal authorities, as well, indicate the propriety of counsel taking immigration consequences into account in plea bargaining.  For example, in United States v. Gonzalez, the prosecutor attempted to dismiss a charge in order to prevent the defendant’s deportation after he had served his sentence.  The defendant, because of inadequate assistance of counsel, had not been informed, prior to plea, of the deportation consequences of the conviction.  This led to a concern that the plea agreement had been “unfairly negotiated” “when the defendant lacked full information regarding the consequences.”[68]  The court held that the desire to prevent deportation, where the defendant had received such ineffective assistance of counsel, was in the interests of justice and was “a proper and appropriate reason for dismissing an indictment . . . .”[69]

                For suggestions of other arguments, see § § 8.16(C)(3), 8.19(B),(C), supra.

[68] United States v. Gonzalez, 58 F.3d 459, 462 (9th Cir. 1995).

[69] Ibid.