Criminal Defense of Immigrants


§ 8.48 5. Other Advice to Client

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If the sentencing will be accomplished during the plea proceeding, and counsel will not see the client again, counsel should also cover a number of topics with the client.  See § 2.49, supra.


                (1)  The exact immigration consequences of the final disposition of the case.  If adverse immigration consequences are unavoidably triggered, counsel should advise the client what those will be and how best to meet them, including the advisability of retaining immigration counsel to help alleviate them.  Counsel should assist the client to obtain immigration counsel competent and experienced in dealing with criminal immigration issues.


                (2)  If the client is on the brink of triggering deportation or other adverse immigration consequences, i.e., if the client will receive a sentence of 364 days in custody where a sentence of one day more would render the conviction an aggravated felony conviction, triggering mandatory deportation, the client should be informed s/he has reached the maximum and any additional sentence for violation of probation will trigger mandatory deportation.


                (3)  If the client cannot travel safely, counsel should cover this warning with the client.  If the disposition is safe only within a certain area, the client should be told to remain within the jurisdiction in which the disposition is safe.  For example, if the client has received state rehabilitative relief that is effective in eliminating the immigration consequences of a first-offense possession conviction in the Ninth Circuit,[103] the client should be told the immigration consequences of leaving the Ninth Circuit and encountering immigration authorities outside that area.

[103] See § 11.20, infra.




Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. (Anna Gorman, Concerns Arise Over Fast-Track Deportation Program, Los Angeles Times (Mar. 2, 2009),,0,5186477.story.) "The number of detainees in California and across the nation who agreed to be deported without first seeing a judge jumped fivefold between 2004 and 2007, from 5,481 to nearly 31,554. In the first half of 2008, 17,445 speedy deportation orders were signed." (Ibid.) Almost half of all of these orders after 1999 were issued in Lancaster, California, Los Fresnos, Texas, and Eloy, Ariz. Immigration attorneys question whether those who agree to deportation under this program have been accurately informed of their options. Jayashri Srikantiah, the director of the Stanford Law School immigration clinic, said some detainees are pressured to sign the deportation forms even though they may have defenses against deportation or be eligible for asylum or green cards. About 95% of the people who agreed to the speedy deportations since 1999 are not represented by attorneys, she said. (Ibid.)