Criminal Defense of Immigrants

(B)  Specific Tactics.  Several tactics may be of assistance in depriving the government of access to the probation report as a source of facts to use to bring the conviction within a ground of deportation or inadmissibility:

                (1)  Refuse to Stipulate Facts Contained in the Probation Report are True.  Avoid any stipulation that the court can consider the facts contained within the report as uncontested or admitted facts. 

                (2)  Affirmatively State the Defense Does Not Agree Probation Report Facts are True.  Counsel can state that as the court knows, the defendant and the police often disagree on exactly what happened during the commission of the offense, and counsel is not free to stipulate or admit that the facts contained in the police report description of the facts of the offense are true in every detail.  It is possible to contest the accuracy of the facts contained in the PSR, but the court is free not to conduct a hearing, or make a detailed finding, if it concludes that the dispute does not affect the sentence choices.[47]  The court has discretion concerning whether or not to conduct an evidentiary hearing.[48]  See § 10.33, infra.

                (3)  Carefully Agree to the Truth of Only the Harmless Facts in the Report.  Counsel can carefully frame agreement with the truth of only certain of the facts contained in the probation report, those which cause no immigration harm.

                (4)  Include Favorable Facts in the Plea Agreement.  Counsel can frame the plea agreement to specify certain facts, for example, the amount of loss to the victim(s) resulting from the particular count of conviction.  See § § 8.63-8.67, supra.  The Ninth Circuit has held that where the plea agreement specifies the loss to the victim, that is binding on the immigration authorities even if the presentence report or judgment reflects a larger restitution amount resulting from the case as a whole.[49]  See § 19.74, infra.

[47] See F. R. Crim. P. 32(i)(3). 

[48] United States v. Garcia, 954 F.2d 12 (1st Cir. 1992); United States v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996).

[49] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (federal conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).