Criminal Defense of Immigrants

The factual basis can be established through factual admissions, often made under oath, particularly in federal court, by the defendant.  Oral statements of the defendant during the plea hearing constitute part of the record of conviction for the purpose of establishing the nature of the offense for immigration purposes.  See § 16.24, infra.[169]  It is very important to prevent the defendant from making any oral admissions that could bring the offense of conviction within a ground of deportation or inadmissibility, or trigger other adverse conduct-based immigration consequences.  Factual basis stipulations can also qualify as admissions of the defendant and thus become part of the record of conviction, for the purpose of establishing the nature of the offense for immigration purposes.

                If the defendant cannot avoid making oral admissions of the offense conduct, counsel should try to script them so they do not cause immigration damage.  For example, if the safe haven sought is possession of an unidentified weapon, so as not to trigger a firearms conviction ground of deportation, counsel can draft an oral admission for the defendant to make that gives factual detail that does not create immigration harm, but omits to identify the nature of the weapon: “Your Honor, I admit that on August 24, 2006, on the corner of Hollywood and Vine, at 1:39 in the morning, I had in my pocket a dangerous weapon in violation of  Penal Code § 12020(a).”  This gives the appearance of a factual admission of guilt, yet does not admit the key fact (the weapon was a firearm) that would bring the conviction within the firearm conviction ground of deportation.

                The same effect can be achieved by counsel offering a stipulation to the foregoing facts as a stipulation of the factual basis for the plea.  This looks a little better than the defendant reading from a script, but has the same legal effect.  Counsel can do the same when drafting an agreed statement of facts in connection with a written plea agreement.

[169] Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. July 16, 2004) (defendant’s factual admissions during plea hearing may be used to identify particular elements of divisible statute that form the offense of conviction); Matter of Madrigal, 21 I. & N. Dec. 323 (BIA 1996) (admission by the defendant during plea hearing that weapon was a firearm); Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (even though the rest of the record of conviction contained no reference identifying the particular drug involved, the defendant’s admission he possessed heroin, contained in the reporter’s transcript of the guilty plea hearing, was sufficient to establish that the drug possessed was proscribed by federal law), distinguishing Matter of Cassisi, 10 I. & N. Dec. 136 (BIA 1963).