Criminal Defense of Immigrants


§ 8.33 1. Whether to Alert Prosecution or Court to Immigration Issues

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This can be a difficult question.  In an increasing number of cases, the prosecution or court will be aware to some extent of the immigration issues, often with major errors in understanding.


                Sometimes, the prosecution (or court) will be delighted to learn they can force the permanent banishment of the client.  They will have an additional source of leverage against the client, to force the client to take more counts or serve more years in prison as a price for obtaining a plea bargain requiring their consent that will not result in deportation.  It may therefore be in the client’s interest not to disclose the immigration situation.  For example, some serious offenses do not trigger immigration consequences.  The immigration consequences can be avoided by a plea to an immigration-harmless offense without necessarily alerting the prosecution or court to the immigration situation.

                The client has an absolute statutory right to keep silent in plea discussions about his or her immigration situation under some state statutes.[73]


                On the other hand, if the “equities” of the client are highly favorable, and the criminal charge relatively minor, many prosecutors and courts are open to respecting the immigration needs of the client, or the client’s innocent family, for reasons such as the following:


·              they do not want to deport the breadwinner away from his or her innocent U.S. citizen family, which might throw the family onto the welfare rolls;


·              permanent deportation away from long-time home and family may be unfairly harsh as a punishment for a relatively minor offense;


·              the client has been here so long that while s/he may be a “problem,” s/he is our problem;


·              the client cares so deeply about the immigration effects of the relatively minor offense that s/he will be forced to take the case through a lengthy trial, appeal, and on to the Supreme Court and into post-conviction relief if necessary in an effort to preserve the ability to reside here at home with family members, and the prosecution is unwilling to incur major transaction costs over a minor case.


·          the prosecution is satisfied by inflicting the same criminal penalties (and no more) on the client that are routinely inflicted upon U.S. citizen defendants in the same situation.


                Under these circumstances, it may make sense to make the immigration consequences a focal point of the plea-bargaining.


[73] E.g., California Penal Code § 1016.5(d) (last sentence), provides: “It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal [immigration] status to the court.”  (California Penal Code § 1016.5(d).)  In addition, the client’s Fifth Amendment privilege against self-incrimination protects undocumented immigrants against compelled disclosure of their immigration status, since an answer to these questions may provide a link in the chain of evidence necessary to convict them of illegal entry.




Attorneys representing unauthorized immigrants are required to maintain their clients immigration status confidential unless otherwise directed or required by law, and are not required to affirmatively notify opposing counsel or the court of their clients immigration status. David P. Weber, (Unfair) Advantage: Damocles Sword And The Coercive Use Of Immigration Status In A Civil Society, 94 Marquette L. Rev. 613, 639 n.158 (2010).