Criminal Defense of Immigrants


§ 11.47 i. A Small Criminal Case Has Large Immigration Effects

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This factor is very important.  At one extreme, few judges or prosecutors would feel that deportation is fair punishment for a Legal Permanent Resident (LPR) of 30 years with a U.S.-citizen spouse and U.S.-citizen children on the basis of a speeding ticket alone.


                If the conviction is minor, such as a misdemeanor with no jail time, it is frequently possible to convince a judge or prosecutor to vacate and dismiss it upon credible proof of the disastrous immigration consequences, even if there were no errors in the conviction and it occurred a long time ago.  (In order for the immigration authorities to honor the order, however, the order must reflect that the conviction was vacated on grounds of some legal invalidity,[300] and not on humanitarian grounds or on the basis of a state rehabilitative statute.)[301]


                Counsel confronted a case a few years ago in which the client was convicted of being under the influence of a controlled substance, to wit, “*”.  The prosecutor’s typist had neglected to fill in a blank on the complaint form, and the defendant had pleaded guilty “as charged in Count I.”  While a technical assault was mounted against the conviction, counsel was able in fact to go into chambers and chuckle the conviction out of existence.


                Many minor cases are summarily disposed of without regard to the technical requirements, waivers of fundamental rights, or documentation necessary to constitute a valid conviction or sustain the constitutionality of a criminal conviction against a claim of legal invalidity during post-conviction proceedings.  This is particularly true of those offenses, such as being under the influence, that fill the docks on Monday mornings so that judges in urban courts make blanket offers of time served in return for mass guilty pleas.  These convictions, also, can frequently be vacated and dismissed on proof of serious adverse immigration consequences; they are also usually vulnerable to successful attack even if resistance is encountered.


                Prosecutors often will not care to defend misdemeanor convictions with any vigor.  Defense attorneys who have good relationships with court or prosecutor can frequently call in a favor and get these vacated and dismissed.  There are some exceptions.  Driving under the influence, petty theft, or domestic violence convictions may be more stoutly defended because they can be alleged as prior convictions to enhance future sentences if the client reoffends.  Moreover, misdemeanor convictions resulting from plea bargains in felony cases, or that carry more severe sentences in their own right, may also be more vigorously defended.  Nonetheless, courts may not care very much about even these more serious misdemeanors and may be willing, if they can be forced open, to dismiss rather than relitigate these old cases.


                The more serious the case, the more the prosecution may care to defend the conviction.  For more serious misdemeanors and minor felonies, it is often necessary to offer the prosecution an equivalent conviction that does not affect the client’s immigration status and reinstate the original sentence in order to persuade them to alter the troublesome conviction.


                For felony convictions for which the client received a state prison sentence, it is common for prosecutors to resist efforts to reopen the convictions, and to insist on equivalent convictions and sentences the second time around if the conviction is in fact reopened.  After a case has been forced open, however, prosecutors are often willing to be somewhat flexible in order to avoid immigration consequences in negotiating a new bargain.


                For these and for more serious cases, prosecutors may feel strongly enough to re-prosecute the case and attempt to convict the client again of a deportable offense, or even to convict the client of more serious offenses and inflict a more serious sentence on the client.  Thus, it is always important to screen cases to determine whether there is any realistic possibility that the client would receive a longer prison sentence the second time around.


                For felonies carrying potential sentences of more than a few years in prison, it is unlikely that the court or prosecutor would be willing to cut the client any slack unless counsel can convince them the client was innocent of the original offenses.  The only hope in such cases is a strong enough ground of invalidity to force the conviction open, and a strong enough defense to make it reasonable to take the case to trial.  Even when the client has served a five-year prison term, after the conviction has been forced open, it has occasionally been possible, after much blustering on the part of the prosecution, to force a non-deportable resolution with a credible threat of trial.  Under these circumstances, the client has served the time, and is entitled to credit for time previously served against a future sentence for the same offense.  Therefore, the court may assist in persuading the prosecutor not to waste a trial department on an old, formerly closed case, in which the client likely will not — and should not — serve additional time.

[300] See § § 11.3-11.8, infra; Beltran-Leon v. INS, 134 F3d. 1379 (9th Cir. 1998); Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

[301] Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), deportation orders reversed sub nom.  Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).