quick reference chart and notes for determining immigration - ILRC

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California Quick Reference Chart and Notes February 2010 E. Checklist: Ten Steps in Representing a Non-Citizen Defendant, from Interview through Appeals 1. If there is no immigration hold, get the noncitizen out of jail. The first defense task is to try to get the defendant out of jail before an immigration detainer or hold is placed. Advise the defendant not to speak to anyone but defense counsel about any matter, whether the criminal case, or immigration status, the home country (even place of birth), or family history. 2. If there is already a hold, stop and analyze whether or not you should obtain release from criminal custody. If an immigration hold has been placed, do not attempt to bond or O.R. the defendant out of jail without analyzing the situation. The defendant might end up in immigration detention, which could be worse. Consult §N.5 Immigration Holds and Detainers, infra, and Chapter 12, Defending Immigrants in the Ninth Circuit. If your client has signed a “voluntary departure” request (agreement to leave the country without being removed) you can revoke it, but you should consult an immigration attorney before doing this. (For example, if the client has no relief and an aggravated felony conviction, voluntary departure instead of removal may be a very good option.) 3. Gather facts about the defendant’s criminal record history and immigration situation. See if the defendant’s family can retain expert immigration counsel with whom you can confer. Many immigration attorneys will set up monthly payment plans. Determine whether special translation is needed, and if competent translation is available. 4. Analyze the immigration consequences of the criminal case and determine defense priorities, using all resources available including consultation with experts. What is the defendant’s immigration status now? What would cause her to lose her current status? What new status or application might she be eligible for? Is the biggest priority to get release from jail under any circumstances? What effect would the proposed plea have on the above, and what are better alternatives? Don’t forget to warn a removable defendant about the dangers of illegal re-entry; try to avoid a plea that would serve as a severe sentence enhancement in the event of an illegal re-entry prosecution. 5. Always consider the possibility of obtaining a disposition that is not a conviction, such as juvenile delinquency disposition, pre-plea disposition, and possibly infraction. A conviction on direct appeal of right is not a final conviction for immigration purposes, at least in the Ninth Circuit. In particular, submitting the matter on a preliminary examination transcript or police report or pleading guilty after a suppression motion (P.C. § 1538.5), and then filing an appeal does not result in a “conviction” for immigration purposes, while it affords some of the benefits of plea bargaining rather than trial. This can be a good course for noncitizen defendants. 6. Thoroughly advise the defendant of the criminal and immigration penalties involved in various defense options. Immigration penalties may include Immigrant Legal Resource Center N-27
California Quick Reference Chart and Notes February 2010 ‣ extended detention (even for persons accepting the deportation, if they do not already have identifying documentation sufficient for travel to the home country), ‣ loss of current lawful status (by becoming “deportable”), ‣ loss of ability to get lawful status in the future (by becoming “inadmissible,” or coming within some other bar to status or relief) ‣ extra penalties for an aggravated felony conviction (with few exceptions, deportable and permanently barred from status, immigration detention until removal, extra penalty for illegal re-entry) ‣ in some cases certain removal, in others being put into removal proceedings but with a possibility of obtaining a discretionary waiver or application ‣ federal prison sentence if after removal the person re-enters the U.S. illegally. If the person already has re-entered illegally and remains in jail, he or she is likely to be detected by immigration authorities and transferred for federal prosecution. 7. If trade-offs must be made between immigration and criminal case concerns, ascertain the defendant’s priorities. Is this a case where the defendant would sacrifice the criminal outcome to get a better immigration outcome? Is this a case where the defendant only is worried about amount of jail time? Once you and the client have identified the priorities and specific defense goals, defend the case accordingly. 8. If you obtain a good immigration outcome in criminal court, don’t let it go to waste! Give written confirmation to the defendant or immigration counsel. Check court documents to make sure that they accurately reflect the desired outcome. If a court document proves something beneficial to the client, give him or her a copy of it. Most immigrants are unrepresented in removal proceedings, and many immigration judges are not expert in this area. Make sure that they realize that your client has a defense. If the defendant has an immigration hold, give him (or immigration counsel, if any) a statement of how the disposition avoids an immigration consequence. Pre-written summaries of various defenses, which you can give to defendants or their immigration counsel, can be found at § N. 14 Safer Plea Options. This is especially important if your client does not have immigration counsel: he literally may need to hand this piece of paper to the immigration judge. An example of a statement is: Mr. Cazares pled guilty to H&S § 11379(a), specifically to transportation of an unspecified controlled substance. Transportation for personal use is not an aggravated felony. An offense involving an unspecified California controlled substance is not a deportable or inadmissible offense or an aggravated felony. Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9 th Cir. 2007). N-28 Immigrant Legal Resource Center
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