Criminal Defense of Immigrants

(C)  Advice of Exact Immigration Consequences.  Counsel should advise the client specifically on the exact immigration consequences the plea will have.  A general warning that the client may or even would be deported is not sufficient.  See § § 2.36-2.40, infra. 

                Chapter 24, infra, contains a thumbnail sketch of many different forms of immigration relief available to immigrants, with a description of the immigration consequences for each related to crimes.[100]  A thorough job of informing the client of the immigration consequences of a particular plea bargain would include going down this checklist and telling the client: 

a.             what the DHS will do to him or her as a result of this conviction;

b.             the different forms of immigration relief that will be foreclosed to the client as a result of this conviction; and

c.         the forms of immigration relief that will be open to the client, even with this conviction, and what the client must do to qualify for each.

                Example:  A sample warning of the exact immigration consequences that will flow from a firearms conviction is the following.  Jose has lived in this country as a lawful permanent resident for 30 years, and is married to a U.S. citizen.  He is being offered a plea of guilty to a misdemeanor charge of carrying a concealed firearm in violation of California Penal Code § 12025.

                He should be told:

“If you enter a plea to a firearms charge, even if you are a permanent resident with U.S. citizen relatives who has lived here for 30 years, the conviction will have the following immigration consequences for you:

                “a.           You will be deportable.

“b.           If you are deported, your lawful permanent resident status will be revoked.

“c.           After deportation, you would become excludable for five years from the United States, i.e., you would be prevented from re‑entering the U.S. on any basis whatsoever unless you can get a waiver of excludability.

“d.           You may be eligible for cancellation of removal if you meet certain requirements, and you may be able to adjust your status and get a new green card because of your marriage to a U.S. citizen.”

                PRACTICE TIP:  This process should involve analyzing the immigration relief for which your client might be or have been eligible.  This can be done by reviewing Chapter 24, infra, or consulting immigration counsel experienced in criminal immigration issues.

[100] Briefly, they include applicants under the Legalization and SAW programs, the Family Unity/Family Fairness programs, suspension of deportation, political asylum, withholding of deportation and § 243(h) relief, ABC asylum cases, TPS cases, registry, voluntary departure, § 212(c) relief (waiver of deportability), cancellation of removal, § 212(h) waivers, § 212(g) waivers, family visa petitions, adjustment of status, consular processing, employer visa petitions, juveniles eligible for long term foster care, and derivative or acquired U.S. citizenship.