Criminal Defense of Immigrants


§ 11.77 (A)

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At the moment the original conviction or sentence is vacated, a wonderful opportunity exists to settle the case on acceptable terms that protect the immigration status of the client.  The court and prosecutor know the case.  The client has presumably become a human being in their eyes.  No one wants time-consuming litigation of a case that has been closed, and in which the client has already (presumably) completed serving the sentence the court and prosecutor felt was a sufficient pound of flesh by which the defendant should atone for the offense.  Presumably the client has given them no fresh cause to punish him or her more severely (aside from the inconvenience of reopening the case — a forbidden ground of harsher punishment).  See § § 8.12, et seq., supra.


                The defense can often succeed at this point, where bargaining power is again high, if it can offer the prosecution a disposition that (a) protects the client against the adverse immigration consequences, and (b) offers the prosecution as much as possible, in terms of level of conviction, re-imposition of the original sentence, and savings of needless litigation.  The defense can sometimes sweeten the pot by offering to have the client begin anew a three or even five year period of probation, thus offering protection for the public safety against the possibility of new offenses.  The defense can offer multiple new convictions, instead of the original single conviction.  By reducing the actual sentence imposed below one year, the defense can in fact offer to increase the hanging time, exposing the defendant to a greater term of imprisonment in the event of a probation violation.


                After a conviction has been vacated, the client may be in a strong position to bargain if the case is an old one, witnesses are missing or reluctant, the client has maintained a good record since the incident giving rise to the charge, and the equities in his or her favor are strong.  The client can take a credible position of refusing to acquiesce in any outcome that will destroy the family and permanently exile the client to a foreign land.  The client can also threaten to put prosecution and court to the extensive work and considerable expense of a jury trial, because the issue is so important to the client, unless an acceptable result is offered.  Since the client has already paid the penalty, there may be little or no risk of any downside for the client except the transaction costs of litigation.  (In this age of mandatory minimums, however, any risks of adverse penal consequences, i.e., a worse result in terms of conviction or sentence, should be thoroughly explored with the client.)


                In essence, counsel can bargain with the prosecutor and court concerning (a) the nature and (b) number of charges to which the client will plead guilty or no contest, and (c) the nature of the sentence the client will receive.


                To analyze goals for the new disposition, counsel should complete the worksheets containing the information the immigration lawyer will need to diagnose the situation.  See Appendix A, infra.  Counsel should by this point be familiar with the target disposition that will successfully resolve the immigration problems, but may also review options with immigration counsel at this point, or research the immigration effects of the potential dispositions personally.  The defense can attempt any or all of the following efforts, as appropriate, during the course of plea‑bargaining in order to minimize adverse immigration consequences:


(1)  Counsel can attempt to find a related (or even unrelated)[453] offense which does not trigger removal or other adverse immigration consequences to which to plead.  In the alternative, the client can plead to two or more offenses, none of which trigger immigration problems, instead of pleading to one that involves immigration damage.


                EXAMPLE:  In one case, after a motion to vacate a voluntary manslaughter conviction had been granted, the client pleaded guilty to involuntary manslaughter and received a sentence of time served.  Involuntary manslaughter does not involve moral turpitude, so the client’s threat of deportation was eliminated.


(2)  Counsel can offer to have the client serve a greater traditional criminal penalty in return for adjusting the charge to one that does not have disastrous immigration consequences.  For example, a client might agree to serve an additional six months in jail, over and above the time the prosecution proposed, in return for changing the charged offense to a different offense which does not trigger removal, inadmissibility, or other adverse immigration consequences.

(3)  Counsel can offer to have the client plead to two misdemeanors in lieu of a felony, in order to avoid the one felony‑three misdemeanor rule disqualifying applicants for amnesty and Family Unity, or to multiple infractions in lieu of a misdemeanor for the same reason.  An applicant for Temporary Protected Status must not have more than one misdemeanor.[454]


(4)  Counsel can bargain for any of the sentencing results which would minimize the adverse immigration consequences, which are listed in Chapter 10.  For example, the client can bargain to obtain suspension of imposition of sentence, a sentence shorter than one year or of six months or less, a sentence which allows for actual confinement of less than 180 days, or the like, as needed for the particular immigration purpose.


(5)  Counsel can attempt to persuade the prosecution to permit a plea to a non‑narcotics offense in lieu of a deportable narcotics offense.  Obtaining the prosecution’s agreement may be difficult, but if the defense bargaining position is sufficiently strong (for example, if essential witnesses have moved away, or the drugs have unaccountably disappeared from the police property room), it may be possible.


(6)  Counsel can bargain to obtain a plea to a non-firearms offense with a firearms sentencing enhancement, or other options to avoid deportability for a firearms offense.


(7)  Counsel can argue the equities in favor of permitting a resolution of the case that does not destroy the client’s family, force it onto welfare, etc.

[453] It is of course perfectly proper to plead a client guilty to a crime of which s/he is completely innocent — as a tactical decision to avoid worse consequences (criminal or immigration), if the case is fought and lost.  The client can simply enter a plea of guilty pursuant to People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385 (1970), or North Carolina v. Alford, 400 U.S. 25 (1970), without admitting actual guilt.  Thus, the parties can negotiate a plea to any mutually acceptable offense, and thus avoid adverse immigration consequences of many offenses.  Under federal law, the same procedure is technically permissible, although many district judges resist accepting or refuse to accept a plea if the defendant maintains innocence.  In general, the more closely related the negotiated offense is to the offense committed, the easier it is to convince prosecution and court to accept the disposition.

[454] See § 10.92, supra.