Criminal Defense of Immigrants

(A)  Admissions of Facts Bringing Conviction Within A Ground of Deportation.  It is important to make sure the defendant does not admit facts that would bring the conviction within a ground of deportation.  There are several contexts in which courts are especially tempted to go outside the record: (a) to determine the age of the victim to see whether the offense constitutes aggravated felony sexual abuse of a minor or an offense involving a child under the domestic violence deportation ground; (b) to determine the existence of a domestic relationship between the defendant and the victim that might bring a conviction within the domestic violence deportation ground; and (c) to determine the amount of loss to the victim(s) of a fraud offense, to see whether it constitutes an aggravated felony fraud conviction.  See § 16.7, infra.

This practice, however, can be challenged on the ground that the determination of whether a given conviction falls within a ground of deportation is determined only by the elements of the offense of conviction, rather than the facts, even if the facts are contained within the record of conviction.  See § § 16.18-16.21, infra.  If the court decides it may go outside the record of conviction to consider these additional facts, certain offenses that would be safe havens without consideration of additional facts may no longer be safe, and it is necessary to obtain different convictions to avoid these grounds of deportation. It is therefore especially important in these contexts to avoid admissions of a defendant during a plea colloquy.

                The three primary forms of admission that can cause immigration damage are (a) factual admissions by the defendant that can trigger conduct-based immigration consequences, see § 8.63(B), infra; (b) admissions of committing the elements of a crime of moral turpitude or controlled substances offense, see § 8.63(C), infra; and (c) factual admissions that are included within the record of conviction to bring it within a ground causing deportation, inadmissibility, or other damaging immigration consequences.  See § 8.63(D), infra.