Tooby's California Post-Conviction Relief for Immigrants

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Advice Not To Discuss Immigration Situation With Authorities.  In addition to the standard criminal defense advice, it is important to tell the client not to discuss his or her immigration situation, birthplace, or manner of entry into the U.S. and the like with anyone including probation officers and agents of the DHS.  Sometimes immigrants mistakenly assume probation officers are attorneys and tell them too much.  (The client, of course, should discuss the facts of the offense only with counsel.)

            The client’s privilege against self-incrimination covers immigration status, since certain immigration violations carry criminal penalties.[100]  Persons who have entered the U.S. after having previously been deported should definitely not talk with the DHS or border patrol.  In the face of the client’s silence, the DHS may be unable to meet the burden of proof in deportation hearings.

            Counsel should make sure the client has not signed a voluntary departure agreement (Form I-274),[101] and should advise the client not to do so.  If the client has done so, the client or attorney can attempt to revoke the request for voluntary departure.  An immigration attorney can advise on this.

[100] E.g., Bong Youn Choy v. Barber, 279 F.2d 642 (9th Cir. 1960); Estes v. Potter, 183 F.2d 865 (5th Cir. 1950).

[101] See Criminal Defense of Immigrants § § 15.29-15.33.