Criminal Defense of Immigrants

The length of the custody sentence imposed by the court is perhaps the sentence element with greatest immigration effects.  See Chapter 10, infra.  For example, where a noncitizen is charged with having committed an aggravated felony crime of violence, with a sentence imposed of at least one year.[121]  The maximum possible sentence can also have important immigration consequences,[122] so the level of the offense to which a plea is entered, felony, misdemeanor, or infraction, can also be important for this reason, as well as for immigration contexts in which the level of the offense itself triggers consequences. 

                The question of sentence, however, is distinct from the question of the nature of the offense of conviction.  Therefore, decisions allowing resort to the record of conviction for sentence do not undermine the rule that the record of conviction may be consulted, to determine the nature of the offense, only where the statute of conviction is divisible and it is not otherwise possible to determine which offense within a divisible statute is the offense of conviction.  See § 16.7, infra.

                (C)  Effect of Immigration Consequences of Conviction on Sentence.  The disposition of the criminal may have a great effect on whether an immigration hold is lodged against the client.  An immigration hold can have a great and direct impact on many aspects of sentence, such as eligibility for parole, drug treatment programs, half-way houses, and the like.  See Chapter 6, supra.  If the client may be subjected to an immigration hold, therefore, counsel must understand the sentencing programs that will be open to the client, or foreclosed to the client, for this reason.

[121] See, e.g., INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (“term of imprisonment at least one year”).  But see Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001); Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (applying Taylor analysis to sentences to find that, as a recidivist sentence enhancement was not an “element” of an offense, such enhancement could not be considered in determining the length of sentence imposed).

[122] See, e.g., INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q) (“punishable by imprisonment for a term of 5 years or more”).  See also Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying Apprendi v. New Jersey, 530 U.S. 466 (2000) rule that any factual sentence enhancement that increases potential punishment over statutory maximum constitutes an element of the offense and must be found true by the jury; relevant “statutory maximum” is not maximum sentence judge may impose after finding additional facts, but maximum judge may impose without any additional findings).