Criminal Defense of Immigrants


§ 11.52 vi. A Relatively Minor Change in Conviction or Sentence Will Solve the Immigration Problem

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The chances of post-conviction relief are far greater when a relatively minor change in the conviction or sentence will eliminate the adverse immigration consequences.  The classic case is People v. Soriano,[306] in which the client received a sentence of 365 days in custody, triggering an immigration disaster.  The California Court of Appeal held that defense counsel was ineffective for failing to investigate the immigration consequences or inform the client of them.  In fact, however, if the client had received a sentence of one day less, this would have removed the immigration damage.  One day less would not have been much to ask; it might readily have been granted.  Similar situations will likely arise in the future, now that the definition of so many common aggravated felonies requires a sentence of one year or more to be imposed.[307]  There are hundreds or even thousands of cases in which defendants received probationary sentences, on condition of serving 365 days in county jail, that constitute aggravated felonies solely because defense counsel failed to obtain a sentence of 364 days instead.


                Another common pattern is to vacate a conviction of possession for sale of drugs (after the time has been served) and negotiate a plea to felony accessory after the fact to sale of drugs.[308]  This situation offers the prosecution a felony conviction for which the client can be sent to state prison for several years on a probation violation, and yet the immigration courts do not consider the accessory conviction to be a drug conviction or an aggravated felony conviction (so long as the defendant does not receive a sentence imposed of one year or more).[309]  Counsel should double-check whether this conviction constitutes a crime of moral turpitude.


                The chances of obtaining post-conviction relief increase if counsel can identify an immigration-harmless disposition that carries an actual or maximum possible sentence that is even greater than the sentence actually received.  This is because the prosecution is hard-pressed to argue that it would not have accepted a counter-offer that the defendant pleaded to a greater offense with a longer sentence than the plea agreement that was in fact acceptable to the prosecution.


                Finally, if the client was originally charged with three different offenses of similar magnitude, and defense counsel negotiated a plea to a deportable offense, it is frequently possible to vacate that plea, enter a plea to a different count that does not trigger deportability, and reinstate the original sentence with credit for time served.


[306] People v. Soriano, 194 Cal.App.3d 1470 (1987).

[307] INA § 101(a)(43)(F), 8 U.S.C. § § 1101(a)(43)(F) (crime of violence), (G) (theft, receiving stolen property, burglary), (P) (passport fraud), (R) (commercial bribery, counterfeiting, forgery, trafficking in vehicles with altered ID numbers), (S) (obstruction of justice, perjury, subornation of perjury, bribery of a witness).

[308] See 18 U.S.C. § 3; California Penal Code § 32.

[309] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).