Criminal Defense of Immigrants


§ 11.49 iii. Number and Diversity of Original Charges

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It is best if the client was originally charged with only one count and entered a plea to one count.  The case is then seen as more minor than if the client had been convicted of additional counts as well.


                It is not so bad if there were several counts — especially if they charged different types of criminal offenses — so long as they were all committed on the same occasion and disposed of during the same plea proceeding.  This is because each different type of charge is related to a different spectrum of lesser, similar, or equivalent offenses, some of which may not trigger adverse immigration consequences.  Therefore, the more different types of charges there are, the greater the probability of finding some charge or other that is closely related to one of them that has no adverse immigration consequences, and negotiating a plea to it.


                If the client was charged with many counts, however, it becomes extremely difficult to set aside the plea even if a plea was entered to only one count.  The court will look back at the original charges, see that the client was charged with ten different sales on ten different days, for instance, and feel that whatever error occurred in the original proceedings would ultimately have made no difference.  Since it is highly unlikely the client would have been acquitted of all ten counts at trial, s/he would have wound up with the same sentence and immigration disability in any event.  Put another way, the court will feel the client’s plea to one count was not involuntary, and the client got such a good deal that s/he would inevitably have accepted it anyway, even if the error(s) had not been made.  Under these circumstances, (a) it is extremely unlikely the conviction can be forced open, (b) the risks of receiving additional convictions and a longer sentence the second time around become significant, and (c) the prosecutor and court will likely be unwilling to grant any lenience to the client.