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Immigration, Deportation & Criminal Defense

Many defense attorneys fail to consider the potential consequences a criminal case will have on their clients. And even where a person has committed a crime, had a momentary lapse, or made a stupid mistake, and deserves “some kind of punishment,” that individual does not deserve to be deported and — as would have been the case for Joe A. — to be separated forever from his family.

That case made me feel particularly good, because it involved a charge that could have resulted in Jesusa’s brother being deported.

Based on the evidence, I did not want to chance it in front of a jury. However, I managed to convince the prosecutor my client had not intended to commit the charged crime; it was an accident resulting from momentary thoughtlessness. The prosecutor agreed that under the circumstances, deportation was a harsh penalty — plus it would have caused his family to suffer, as his children and soon-to-be-ex-wife would remain in America, but would lose his financial (and other) support — and deportation would surely have occurred if he were convicted or entered a plea to the charge.

I worked out an appropriate compromise and my client ended up with probation and an agreement that would not result in his deportation. However, I did not stop there.

Immigration courts don’t always have to rely solely upon the charge in order to deport someone. True, they first consider the conviction to see if it “categorically establishes a deportable felony.” (Robert James McWhirter, The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers (2d Ed. 2005) § 4.33, p. 118.) But in some cases they will go on to review “judicially noticeable documents.” These documents can include “the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings,” but do not include the California Abstract of Judgment. (Id. at § 4.34, p. 118-119, citing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).)

For those reasons, I took care that my client’s signed guilty plea did not make the usual People v. West stipulation. People v. West, 3 Cal.3d 595 (Cal. 1970) basically outlines the ways to show that an adequate basis for the plea exists. Under People v. Enright, 132 Cal.App.3d 631, 634-635 (Cal.Ct.App. 4th Dist. 1982), this can include police reports. I did not want to give an immigration court any basis for reviewing police reports! Additionally, I worked with the court and prosecutor so that there was no mention of words that might create difficulties when the court took the plea, lest the plea transcripts come back to haunt my client later.

In the end, the State received the pound of flesh it wanted, without stripping my client’s family of its father and brother. My client is attending anger management classes, where he tells me his counselor cannot believe the arrangement I made to protect him from deportation.

The bottom line is this: If you are not a citizen of the United States, you should call a criminal defense lawyer who understands immigration before moving forward in your criminal case.

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