Criminal Defense of Immigrants

(A)  In General.  The challenge now, after vacating the original conviction or sentence, is to achieve a new outcome of the criminal case through standard criminal defense techniques that the client can live with from an immigration standpoint as well as a criminal standpoint.  Counsel must do whatever research or consultation is required in order to obtain an exact understanding of which of the possible criminal outcomes have acceptable immigration consequences. 

                This task is little different from that of mounting an original criminal defense in light of the exact immigration consequences threatened by the different potential dispositions of the case.  Considerable literature is available to assist counsel in this effort.[449]

                The basic approach to defending a criminal case, so as to take immigration consequences fully into account, is quite simple:

(1)  Obtain exact information on the client’s immigration situation;

(2)  Consult an immigration expert (or do sufficient research) to determine realistic criminal defense goals that can minimize immigration consequences;

(3)  Determine with the client how important the immigration goals are, as opposed to traditional criminal defense goals;

(4)  Formulate a strategy that gives appropriate weight to the need to minimize adverse immigration consequences, in light of the other consequences of the criminal case and the desires of the client; and

(5)  Continue to consult with an immigration attorney since additional immigration questions frequently arise during the course of the case.

[449] D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (West Group 2007); K. Brady & N. Tooby, How to Protect Defendants from Immigration Consequences, 24 California Attorneys For Criminal Justice Forum, No. 3, 42 (Aug., 1997); K. Brady, D. Keener, & N. Tooby, Representing the Noncitizen Criminal Defendant, Chap. 48 in California Continuing Education of the Bar, California Criminal Law: Procedure And Practice (7th ed. 2004).