quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
especially those with close family in the U.S., will attempt to re-enter the U.S. illegally after
removal. Illegal re-entry is a federal offense that carries severe sentence enhancements if the
person had certain prior convictions. Illegal re-entry following removal is the leading federal
criminal charge brought today, comprising roughly 30% of all new federal charges brought
nationally. 8 See important information at § N.1, Part D: Avoiding an Immigration “Strike.”
I don’t have time, there’s nothing to be done, and how would I know what to do? Just
correctly analyzing the immigration consequences and defense goals in a case can be a daunting
task to hand to already overworked criminal defense counsel. It isn’t fair, and it isn’t always
workable. However, it is the reality. You are the one conducting the all-important criminal case.
Further, because no representation is provided in immigration proceedings, you may be the last
chance the non-citizen has to be represented, or to ever talk to a lawyer.
You can make life-saving changes. A criminal practitioner who can get a basic grasp on
the immigration situation, obtain a disposition that lessens or avoids the potential immigration
consequences, and communicate this in writing or orally to the defendant or to immigration
counsel, can make all the difference in the world. In some cases, you will prevent the client from
spending months or years in immigration jails, and you will prevent deportation and permit the
client to remain with family. You will make an incalculable difference in the life of the client
and her family, often an impact greater than by competent handling of the criminal penalty.
Fortunately there are a growing number of materials and consulting experts who are
ready to help you to accurately advise clients and advocate for a disposition that includes
immigration concerns. In the Ninth Circuit at least, there also is some very good case law to
guide your choices. The purpose of the Chart and accompanying Notes is to make the task of
analysis and advocacy easier, and help you to take advantage of good law. Further, you can
obtain individual consultation from immigration experts, additional and more in-depth materials,
access to list serves, and training. See § N. 17: Resources.
In many cases it is possible to identify a plea -- to a felony or misdemeanor offense -- that
is roughly equivalent to the one charged but is safer for immigration purposes. This sort of plea
may permit the person to prove she should not be in removal proceedings at all, or to avoid
mandatory immigration detention, or to preserve eligibility for lawful status or some relief from
removal. Alternate pleas are detailed in the Chart and accompanying “Notes” (short articles on
various topics). Just a few examples of the many successful immigration plea strategies are:
Some offenses become aggravated felonies only if a sentence of a year or more is imposed.
• Where defense counsel negotiated a sentence of 364 days rather than 365, the conviction
for a crime of violence was not of an “aggravated felony.”
• Where defense counsel declined to accept a 16-month sentence with credit for six months
time served, and instead bargained for a sentence of 11 months with no credit for time
8 See, e.g., statistics at http://trac.syr.edu/tracreports/bulletins/overall/monthlynov09/fil/.
Immigrant Legal Resource Center N-7