Criminal Defense of Immigrants

                (B)  Specific Tactics.  Various tactics can reduce the immigration damage that might otherwise flow from a probation violation sentence:

                (1)  Accept Custody Time on New Offense.  If prosecution and court wish to impose a certain amount of time in custody, say six months, as punishment for the behavior that is alleged both as a probation violation and a new offense, counsel can seek to accept the custody time on the new offense, instead of as punishment for a probation violation on the original offense, in order to keep the total sentence ordered by the court on the original offense below the amount that would trigger immigration damage.  For example, if the client was originally sentenced to six months on a theft offense, and the court wishes to impose an additional six month sentence on account of the probation violation conduct, counsel could ask the court to do so on a new theft conviction so the client receives six months on the original theft, and six months on the new theft, but not a sentence ordered of one year or more on any single theft offense.  This new disposition would therefore not trigger deportation as an aggravated felony, since there was no total one-year sentence on any single theft conviction.

                The same tactic can be used to accept a custody order on a certain count of conviction, rather than on another count.  For example, if the defendant was originally convicted of two counts of theft, received a nine-month sentence on both, and must now accept an additional term of six months for a probation violation, counsel could suggest that the original sentence on count II be vacated in its entirety, that the client waive credit for the time he has already served on that count, and that the court impose a six month sentence on count II with no deduction for time already served.  That way, the court imposes the same additional six-month sentence, but the client does not have any sentence of one year or more on either count.

                (2)  Accept Custody Time on Probation Conviction.  Similarly, if the new offense is an offense that becomes an aggravated felony with a one-year sentence imposed, but the original offense is not, counsel could ask the court to impose the additional custody time as punishment for the probation violation, in lieu of filing the new charges as a new criminal case and in lieu of imposing a custody sentence on the new offense.  This strategy also works well if taking the time on the original case will be immigration-safe, whereas the new offense would trigger adverse immigration consequences in its own right, even without a certain sentence imposed.  For example, if the new offense is sexual abuse of a minor, which constitutes an aggravated felony regardless of sentence, it may be advisable to take a prison sentence on the original offense as punishment for the new offenses considered as a probation violation, where the original offense does not trigger deportation, and save court and prosecution the work of filing and litigating the sex offense as a new criminal case.