Criminal Defense of Immigrants

Counsel should prepare the defendant for the probation interview by describing what the probation officer will ask and suggesting how the defendant should handle the interview.

                The same three steps should be used here, as with the documentary materials, in an effort to maximize the sentence benefits, while minimizing immigration damage, from the defendant’s statements to the probation officer.  See § 10.10, supra.

                If the defendant does not speak fluent English, or there is any chance of misunderstanding between probation officer and defendant, it is wise to provide for an interpreter to attend the defendant’s probation interview.  See Chapter 4, supra.

                During the probation interview, the defendant has a Fifth Amendment right to remain silent concerning immigration matters, since the answers to questions could provide a link in the chain of evidence necessary to convict the defendant of immigration offenses such as giving a false statement to a federal officer,[35] illegal entry,[36] or illegal re-entry after deportation.[37]  The privilege against self-incrimination can be exercised even after a guilty plea has been entered.[38]

[35] 18 U.S.C. § 1001.

[36] 8 U.S.C. § 1325.

[37] 8 U.S.C. § 1326.

[38] Mitchell v. United States, 526 U.S. 314 (1999).