Criminal Defense of Immigrants
§ 21.30 V. Safe Havens
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For purposes of this book, a “safe haven” is defined as a disposition in a criminal case that will not trigger removal under any ground of inadmissibility or deportability.
Because many drug-related grounds of inadmissibility, and at least one ground of deportation, are conduct rather than conviction based, it may be extremely difficult to craft a fully effective safe haven disposition in criminal court. However, if your client has a strong factual defense against the various conduct based grounds of removal, s/he may be able to overcome charges of removability if criminal counsel is able to construct a disposition that avoids triggering the relevant conviction based grounds of removal.
Additionally, in many cases your client may need only a partial safe haven. Criminal defense counsel may be able to dispose of the case in a way that:
1. Avoids the grounds of deportability, but not inadmissibility, allowing a lawful permanent resident to remain in the United States indefinitely (although they may face removal proceedings if they leave). This may also allow the noncitizen ultimately to naturalize, after which they would no longer be subject to any ground of removal.
2. Avoids the grounds of removal that would apply to the specific client. Due to various factors, such as length of residence in the United States, the client may be able to accept a disposition that is, for example, a crime of moral turpitude, since conviction of such an offense will not trigger removability in their case. Criminal defense counsel should consult with immigration counsel to determine what type of conviction may be acceptable in a given situation.
3. Avoids the grounds of removal which bar the client from receiving relief in Immigration Court. In many cases, a client may only need to avoid conviction of an aggravated felony in order to be able to apply for relief. In other cases, even a very minor crime of moral turpitude or drug offense will completely bar relief. Again, criminal defense counsel should consult with immigration counsel to determine what type of conviction may be acceptable in a given situation.