Tooby's California Post-Conviction Relief for Immigrants

 

(G)

General Advice to Client on Immigration Consequences of Criminal Case.  Counsel should offer the client the following general advice, plus more specific advice on the exact immigration consequences of any offense to which a plea is entered.  See § 2.6, supra; N. Tooby & J. Rollin, Criminal Defense of Immigrants, Chapter § 8.46(A) (2007).

 

The client can be told:

 

Criminal convictions can result in two kinds of consequences:

 

            (1)       Punishment such as jail or prison time, and

 

            (2)       Deportation and other harsh immigration consequences.

 

            If you are a citizen of the United States, you only need to worry about the punishment.  The DHS cannot deport you or take any other action against you, so long as you did not lie in a naturalization application or interview.  If you did, it is possible the DHS may try to take your U.S. citizenship away.[105]  If it succeeds, then you can be deported or excluded from the United States like anyone else who is not a citizen.

 

            If you are not a citizen of the United States, by birth or naturalization, a criminal conviction can force the DHS to take various damaging actions against you even after the criminal case is over and you have already served your time.

 

            If you have been accused of a crime it is very important that you speak to a public defender or a lawyer to protect your legal rights.  Do not plead guilty without understanding the exact adverse immigration consequences the plea may have for you.  For the immigrant, a criminal conviction could result in permanent deportation.

 

            If you were under the age of 18 years old when your case was handled in juvenile court, it will not cause you any immigration problems.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 12.20-12.36 (2007).

 

            If your case is handled in adult court, the immigration consequences depend on your immigration status.  They are different for permanent residents, temporary residents, persons in the United States without documentation, persons who have been here different lengths of time, etc.  This is why it is very important for your lawyer to check with an immigration expert before entering any guilty plea or no contest plea.

 

            In many cases, the immigration consequences can be far worse than the criminal consequences (such as the jail time) you may face if you plead guilty.

 

1.   DO NOT TALK to police, the DA, or the DHS.  Talk only to your lawyer or public defender.

 

2.   Make sure your lawyer investigates the exact immigration consequences of any plea-bargain you are considering, and get a written statement of what they are so you can talk to your family about them and perhaps seek a second opinion from an immigration lawyer.

 

3.   Tell your lawyer how important it is to you to avoid deportation, as opposed to how important it is to you to minimize the jail time.

 

4.   You may have to sacrifice one goal (do less jail time) to achieve another goal (avoid deportation).  For example, if the DA wants you to do two months in jail, your lawyer may persuade the DA to change the charge to a non-deportable charge if you offer to do four months jail instead of two.

 

            This advice does not tell you all you need to know about what the DHS will do to you if you are found guilty in a criminal case, because this will depend on your particular situation, especially your particular immigration status and your particular charges.

 

            How your criminal lawyer can assist you to avoid deportation as a result of a criminal case:

 

            1.         Get the charge dismissed.

            2.         Obtain an acquittal after a jury trial.

   3.        Obtain pre-plea diversion (a program in which you are placed on probation and then later     have the charges dropped without ever entering a guilty or no contest plea).

            4.         Change the charge to a nondeportable charge.

            5.         Reduce a felony to a misdemeanor.

   6.                  Reduce jail time below certain amount.

[105] See § 3.24, supra.