Criminal Defense of Immigrants


§ 11.76 (B)

Skip to § 11.

For more text, click "Next Page>"

(B)  Some Safer Alternative Dispositions.  It is important to discover a safe alternative disposition to offer to the prosecution in lieu of the damaging disposition from which post-conviction relief is sought.  See § 11.76, infra.  This is a very broad topic.  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005). 


                Some alternatives to consider include:


(1)   Pre-Plea Diversion programs.  Any disposition that does not require entry of a guilty or no contest plea is not considered a conviction under immigration law.  See § 7.29, supra.


(2)   Deferred entry of judgment (DEJ) under a program analogous to the Federal First Offender Act does constitute a conviction.  In the Ninth Circuit, however, a dismissal for successful completion of the program completely eliminates the conviction for immigration purposes for certain minor first-offense drug convictions.  See § 11.20, supra.


                Since a guilty plea is entered, this disposition constitutes a conviction under federal immigration law.  Since it sufficiently resembles the federal expungement procedures of 18 U.S.C. § 3607(a), when dismissal is obtained it eliminates the conviction, but only as to convictions for first-offense simple possession of drugs, as well as other lesser drug convictions for conduct that is not forbidden under federal law, and so far only in the Ninth Circuit.  See § 11.20, supra.[450]  It is important to remember that because a guilty plea is entered, DEJ does constitute a deportable drug conviction until the later dismissal occurs, although it is possible the immigration courts might be motivated to defer deportation until dismissal occurs, at which time the conviction (and the ground of deportation) disappears.[451]


(3)   Obtaining Dismissal of Charges.  The prosecution may be persuaded to dismiss charges in the interests of justice.


(4)   Sentencing Procedures to Minimize Adverse Immigration Consequences.  A great deal can be accomplished at sentencing, if the exact target sentence is first identified by consultation with an immigration expert.  For a listing of some of the possible goals, see Chapter 10, supra.  This is the best arena in which to argue the client’s equities, produce voluminous letters of support from members of the community, etc.  Standard sentencing techniques, in support of goals identified to minimize the immigration consequences, are sufficient.  Effective counsel will identify the exact immigration consequences of various sentences, and use this information where it will help the client obtain a sentence that will avoid disastrous immigration consequences or otherwise obtain a lesser sentence.


(5)  Pleading to a Different Offense That Does Not Carry Immigration Consequences.  For example, after a conviction for possession of a firearm has been vacated, the prosecution may be willing to accept a plea to another offense which does not carry immigration consequences.  A non-turpitudinous offense can be substituted for an offense that involves moral turpitude.  It may be possible to negotiate a change in the apparent date of commission of the offense, or the date of conviction of the offense, in order to avoid certain immigration effects that depend on the timing of the commission or conviction, for example, so that the offense is no longer “committed” within five years of entry.[452]


(6)  Taking the Case to Trial.  If a satisfactory resolution cannot be arranged through negotiations, the client may decide to take the case to trial.  Certainly, a willingness to do so creates the strongest of bargaining positions, and many cases have been dismissed by the prosecution on the eve of trial when it comes time to put up or shut up, especially if the client is a pretty decent person and has already paid his or her debt to society arising from the offense.  It may, quite simply, not be worth it to the state to take the case to trial if the offense is old, the case has long been closed, and the punishment has already been exacted, especially if the client has strong equities.


                Moreover, the prosecution bears the burden of proof.  If anything goes wrong, and it cannot prove each element, an acquittal will avoid any immigration problems for the client.  There is a true story of a Washington, D.C. public defender who refused on principle to plea‑bargain at all, and won dismissals or acquittals in 13 of her first 15 cases.  Misdemeanors, especially, may be dismissed on the eve of trial.


                The pressure can be increased by withdrawing a time waiver, and forcing the case to trial by a certain date in states in which the charges must be dismissed if the deadline for trial is not met.  In some states, a misdemeanor once dismissed may not be refiled.


                In the Wounded Knee cases, of about 300 federal felonies, dismissals or acquittals were achieved in about 95% of the cases.  The virtues of being willing to take a case to jury trial are sometimes severely underestimated.


(7)   Post‑Conviction Work.  After a client’s troublesome conviction has been vacated, and the best possible defense has been mounted in light of the immigration objectives, the client may be convicted a second time, and it may be necessary to resort to an additional round of post‑conviction work.  An appeal might result in reversal of the conviction, and remand of the case for a new trial.  The case then would be even older and harder for the prosecution to prove.


[450] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas-Uriarte v. INS, 227 F.3d 1132, 2000 U.S. App. Lexis 23489 (9th Cir. 2000).

[451] See Cardenas-Uriarte v. INS, 227 F.3d 1132, 2000 U.S. App. Lexis 23489 (9th Cir. 2000) (dictum).

[452] INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I).  See § 20.32, infra.