Criminal Defense of Immigrants
§ 8.35 a. Noncitizens in General
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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 can be made:
In passing the state advisal statute, the 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.
The Legislature intended that the court in such cases 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]. 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, recognize 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 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.” 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 . . . .”
If the relief cannot be obtained at the trial level because of bias against noncitizens or a prosecutorial policy against helping noncitizens avoid removal, try to make a record the “blanket policy” against noncitizens, and attempt to obtain relief on appeal.
Overt discrimination on the basis of national origin is forbidden by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Nationality is a forbidden and illogical criterion upon which to base state action. The form in which these prohibitions interact with plea bargaining is the doctrine of discriminatory or selective prosecution, one of the two constitutional restraints on the nearly unbridled discretion of prosecutors in plea bargaining.
In the context of criminal law, California courts, for example, have applied the compelling state interest test, and have specifically held it improper to consider nationality as a factor in imposing sentence, although undocumented status might be a proper factor.
While frequently characterized as a “defense,” a claim of discriminatory or selective prosecution has nothing to do with the underlying merits of the criminal charge itself, but constitutes “an independent assertion that the prosecutor has brought charges against the defendant for an unconstitutional reason, such as race or political affiliation.”
This defense is normally asserted as a pretrial motion to dismiss the charge, on this ground, to be decided by the court.
Lack of citizenship has been held a proper factor justifying high post-conviction bail.
Certainly, discretion may not be based upon an impermissible factor. Moreover, discretion may not be based on an illogical factor. If a result that would be available to a citizen similarly situated is denied on grounds of a blanket policy against noncitizens, and this is documented, it should be possible to obtain relief on appeal.
If a judge or prosecutor is highly biased against granting immigration relief, it may sometimes be prudent not to disclose the fact that the result sought will save the client from deportation or other adverse immigration consequences. See § 8.33, supra.
 United States v. Gonzalez, 58 F.3d 459, 462 (9th Cir. 1995).
 Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
 See, e.g., In re Kotta, 187 Cal. 27, 29 (poll tax on aliens) (1921); Truax v. Raich, 239 U.S. 33 (1915) (statute requiring employers to hire a certain percentage of citizens); B. Witkin, Summary of California Law, Constitutional Law, § 619, pp. 72 et seq. (1988); United States v. Martinez, 354 F.3d 932 (8th Cir. Jan. 14, 2004) (conviction affirmed over objection that district court erroneously denied suppression motion because initial traffic stop and continued detention which resulted in discovery and seizure of drugs were both illegal, as defendant claimed that officer stopped him only because of his nationality); see United States v. Huerta-Orosco, 340 F.3d 601 (8th Cir. Aug. 20, 2003) (defendant waived objection to the introduction of evidence concerning his undocumented immigration status by introducing evidence concerning his “lost papers” during his direct testimony).
 G. Herman, Plea Bargaining § 4:05 (2d ed. 2004), citing United States v. Eklund, 733 F.2d 1287 (8th Cir. 1984); United States v. Ross, 719 F.2d 615 (2d Cir. 1983); United States v. Jarrett, 705 F.2d 198 (7th Cir. 1983); United States v. Hazel, 696 F.2d 473 (6th Cir. 1983); United States v. Amon, 669 F.2d 1351 (10th Cir. 1981); United States v. Saade, 652 F.2d 1126 (1st Cir. 1981).
 E.g., People v. Sage, 26 Cal.3d 498, 506‑508, 165 Cal.Rptr. 280, 284‑285 (1980).
 People v. Johnson, 205 Cal.App.3d 755, 758, 252 Cal.Rptr. 302, 303 (1988) (remanded for resentencing with direction that appellant’s alienage not be relied upon in fixing his term). But see People v. Sanchez, 190 Cal.App.3d 224, 235 Cal.Rptr. 264 (5th Dist. 1987) (consideration of illegal noncitizen status as factor in denying probation did not violate equal protection or due process; People v. Arciga, 182 Cal.App.3d 991, 227 Cal.Rptr. 611 (1986) (illegal noncitizen status properly considered in decision to exclude defendant from California Rehabilitation Center since client would probably not be available to complete outpatient component).
 G. Herman, Plea Bargaining § 4:05 (2d ed. 2004), quoting Wayte v. United States, 470 U.S. 598, 608 (1985).
 See United States v. Bryant, 5 F.3d 474 (10th Cir. 1993).
 People v. Marghzar, 192 Cal.App.3d 1129, 239 Cal.Rptr. 130 (1987).
 See People v. Corvino, 100 Cal.App.3d 660, 671‑672, 161 Cal.Rptr. 155, 161‑162 (1980); People v. Johnson, supra.