Criminal Defense of Immigrants


§ 10.19 (B)

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(B)  Specific Tactics.  Counsel can employ certain tactics, discussed here, in an effort to avoid triggering these adverse immigration consequences.


                (1)  Negotiate Offense With Shorter Maximum.  To avoid these consequences, counsel should attempt to negotiate a plea to an offense with a maximum possible sentence shorter than the length required to trigger the adverse immigration consequences in question.  See Chapter 8, supra.


                (2)  Reduction from Felony to Misdemeanor.  If the criminal court reduces the level of the offense from felony to misdemeanor, that reduction is binding on the immigration courts.  See § § 11.13, 11.15, infra.  [54]  In modifying a sentence in this way, the state court is also modifying the maximum possible sentence the court can impose to the misdemeanor maximum.[55]  This tactic can be combined with the plea negotiation tactic discussed above. 


For example, in California, the maximum punishment for most attempted offenses is one-half the maximum for the completed offense.  Counsel could negotiate a plea to attempted burglary.  Burglary is an offense that can be either a felony or a misdemeanor, as ordered by the court.  As a felony, it has a maximum possible sentence of three years in state prison.  As a misdemeanor, it has a maximum possible sentence of one year in county jail.  A plea to attempted burglary, as a felony, therefore has a maximum of 18 months in prison.  If this offense is reduced from felony to misdemeanor at the time of sentence, the maximum goes down to one-half the misdemeanor maximum of one year, or a final maximum of six months.  If this offense is a crime of moral turpitude, which can trigger deportability under certain circumstances if the maximum possible sentence is one year or more,[56] this reduced offense has a six-month maximum which is too small to trigger deportability under this ground.


                (3)  Sentence Enhancements.  A sentence imposed on the basis of a recidivist sentence enhancement does not count as part of the sentence imposed for the offense itself, for purposes of meeting an aggravated felony sentence requirement.  This principle can be used to argue that a potential sentence that is a felony, or that is a certain number of years, only because of the operation of a recidivist sentence enhancement, does not count as satisfaction of a potential sentence aggravated felony requirement.[57]  See § § 10.18(B)(5), supra, 10.56-10.60, 10.64(B)(10), infra. 


(4)  Post-Conviction Relief to Lower Maximum by Vacating Prior Conviction.  If a noncitizen is charged with removal on account of a conviction of a crime of moral turpitude for which a sentence of one year or more may be imposed, and that maximum applies only because of the existence of a prior conviction, the noncitizen can attempt to reopen the “prior” criminal case and have the prior conviction vacated on the merits.  If successful, the noncitizen should no longer be removable.  The deportation ground is written in the present tense (“sentence . . . may be imposed”),[58] and the condition precedent to the higher maximum sentence no longer exists.  (This argument might not apply to the petty offense exception, since that statute is written in the past tense, to apply if the maximum sentence “did not exceed” one year.)[59]


                (5)  Constitutional Limits on Sentence.  Even if the statutory maximum sentence for the offense of conviction is greater than the length that triggers an adverse immigration consequence, counsel can argue that the immigration statutes creating these consequences are triggered only when the maximum lawful sentence exceeds the trigger amount.  If the Constitution limits the sentence the criminal court can impose, immigration counsel could argue that the maximum legal sentence does not exceed the constitutionally permitted level.[60]  Where an aggravating factor was not admitted by the defendant, or found true beyond a reasonable doubt by a jury, and the enhanced sentence exceeded the length that could have been imposed under sentence guidelines absent the aggravating factor, the Supreme Court held the sentence was not legal.[61]  See § 10.77(C), infra. 


                (6)  Statutory Limits on Lawful Sentence.  The same argument can be made where state or federal statutes, or sentencing guidelines, limit the maximum possible sentence that can be imposed for a conviction of a given offense.  See § 10.19(B)(5), supra.

[54] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003).

[55] See also Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999).  See § § 11.13-11.15, infra.

[56] INA § 237(a)(2)(A(i), 8 U.S.C. § 1227(a)(2)(A)(i).  See § 20.35, infra.

[57] See Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004) (California offense of petty theft with a prior burglary conviction is not a crime for which a sentence of one year or more may be imposed for purposes of INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (CMT within five years of entry, punishable by sentence of one year or more)); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself); United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc) (two-year sentence imposed for a misdemeanor petty theft conviction, which was made a felony by a sentence enhancement based on a prior petty theft conviction, was not imposed “for” the theft offense).

[58] INA § 237(a)(2)(A)(i)(II), 8 U.S.C. § 1227(a)(2)(A)(i)(II) (emphasis supplied).  See § 20.35, infra.

[59] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (emphasis supplied).  See § 20.29, infra.

[60] United States v. Villegas, 404 F.3d 355 (5th Cir. Mar. 17, 2005) (case remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005), to determine whether four-level enhancement to 18 U.S.C. § 922(g)(5) conviction sentence was proper upon court finding that firearm possession was in connection with use of fraudulent immigration documents). See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 5.57(D) (2005).

[61] Blakely v. Washington, 124 S.Ct. 2351 (2004); United States v. Booker, 125 S.Ct. 738 (2005).