Criminal Defense of Immigrants

(B)  General Strategy.  The following general approach may be used in identifying and avoiding immigration consequences in any criminal case, including juvenile proceedings.

                (1)  Obtain Necessary Information.  The client can provide initial information concerning immigration status that you or immigration counsel will need in order to figure out what immigration dangers and opportunities exist for the client.  Two different suggested “Basic Immigration Status Questionnaires” are attached as Appendix A at the end of this book.  You will also need (a) the client’s rap sheet, or criminal history report, and (b) information on the current accusations, likely plea-bargains and sentences.  See generally Chapter 3, supra, on investigation.

                (2)  Research Exact Immigration Consequences.  Calling an immigration attorney is the easiest way to obtain up-to-date information on the immigration consequences of the various possible dispositions.  Unless you have yourself researched the specific immigration questions facing your individual client, using up-to-date resource material, expert immigration advice is absolutely necessary.  See § § 3.42, et seq., supra.  In juvenile court, it may be relatively easy to avoid dispositions that trigger adverse immigration consequences, but it is still very important to put the client in touch with immigration counsel, or suggest how the client can apply for immigration relief him- or herself, if necessary, before it is too late.

                (3)  Explain Immigration Consequences to Client and Determine Client’s Priorities.  General boilerplate advice, such as telling the client that a disposition “might lead to deportation, exclusion or denial of naturalization,” is not very useful to the client, and does not satisfy counsel’s professional obligations.  See Chapter 2, supra.[10]

                Counsel must determine the specific consequences — e.g., disqualification from political asylum, naturalization, loss of green card status, deportation, permanent ineligibility for lawful status, disqualification from waivers — and clearly explain them to the client.  It is also important to tell the client what the chances are that the danger or opportunity will actually materialize.  The client has a right to know what is at stake.

                NOTE:  Advise client not to admit noncitizen status.  Counsel should advise the minor not to volunteer or admit to noncitizen status when speaking with anyone, particularly court personnel.[11] 

                Once the client understands what the immigration consequences are, s/he may or may not make them a defense priority.  Some clients are not willing to risk more time in jail in an effort to safeguard their immigration status.  Others place the right to remain with their families in the U.S. as their highest priority and would sacrifice almost any other consideration.

                (5)  Attempt to Avoid Immigration Consequences.  This may cause a drastic change in defense strategy.  First, counsel must determine precisely what disposition will minimize or eliminate immigration consequences.  The client may be willing to plead to additional counts, or serve an extra six months in custody, for example, in order to alter the conviction to one that will not trigger deportation.  Or it may be advisable, from an immigration standpoint, to stand mute regarding immigration status or drug addiction, even though the client will pay a penalty in juvenile court for the reticence.  These difficult choices must be made by the client, once s/he is fully informed.

[10] See People v. Soriano, 194 Cal.App.3d 1470 (1987) (counsel gave the general advice concerning possible immigration consequences required by state advisal statutes, but was found ineffective, nonetheless).

[11] See In re Adolfo M., 225 Cal.App.3d 1225, 1230, 275 Cal.Rptr. 619, 622 (1990) (juvenile court found that minor was noncitizen based on his mother’s statements to probation officer; minor transferred to Mexican juvenile authorities).