Avoid a “conviction” through diversion that does not require a plea. Remember a plea = conviction, even if later vacated through a rehabilitative statute.
Keep young clients in Juvenile Court; adjudications of delinquency are not criminal “convictions” for immigration purposes.
For crimes of theft and violence, aim for a sentence of less than one-year imprisonment; suspensions of sentence do not count.
For offenses involving a child or domestic violence victim, try to negotiate a plea to a generic battery or assault statute that does not specify the victim. Whether these types of cases take a circumstance-specific, as opposed to categorical approach, is an area of litigation in flux—so eliminating the nature of the victim may or may not be a safe harbor, but it is a good start.
Sometimes, the removability provision is based on financial loss or dollar amounts, not sentence of imprisonment. Keep financial loss under $10,000; if restitution or loss is based on “relevant conduct” outside the actual count of conviction, specify this in the record verbally and in writing. Consider swapping theft for the fraud, bearing in mind that the sentence must be under one year in a theft case.
Always negotiate for the least culpable conduct described by statute. Aggravated batteries and assaults should be negotiated down to simple battery. Consider the categorical approach, and pinpoint the least culpable conduct described by the statute: focus on that minimal language in the record of conviction. Controlled substance sale or trafficking should be negotiated down to straight possession, or at least distribution without mention of the type of drug.
If considering a plea, always consider creative sentencing. Sometimes a short jail sentence is worth it to avoid immigration consequences. For example, John Client is offered a 6- month jail sentence to simple assault and battery or a 1 year suspended sentence. John is better off immigration-wise taking the 6-month sentence because the one-year sentence would be considered an aggravated felony. Also, if multiple counts on a criminal case, consider breaking the sentence up amongst the counts. Instead of one year on one count, do six months on count 1 and six months on count 2. This type of structuring may avoid potentially devastating immigration consequences to your client later.
Think about potential relief down the road. Remember that as a criminal attorney, one may not be able to avoid removability altogether, but can fashion a plea that will allow the client to qualify for relief from removability. The law contains certain waivers, and the waivers have eligibility criteria. With consideration of the criteria, the attorney may craft a conviction and/or sentence wherein the client may still face deportation, but nonetheless qualify for a defensive pardon.
Consider partnering with an immigration attorney experienced in criminal-immigration law; not all immigration attorneys practice in this area. Always clarify that the proposed immigration law partner does this kind of work on a regular basis. Some public defender offices will allot funds to private attorneys handling PD cases for immigration law counsel participation. The time for an immigration attorney to be involved is at the earliest possible stage of the criminal process, not after a plea and judgment are entered.
(This information has been generously provided by AILA, Mary Kramer, Rachel Self, and Michael Sharma-Crawford)
Tel. (619) 961-4169
info@bkjvisalaw.com
600 B St 300, San Diego, CA 92101