Those involved in the criminal justice system, including judges,
prosecutors and particularly defense attorneys, should be aware
of and carefully consider the severe and often automatic collateral
consequences of convictions, whether through plea agreements or
trial, on defendants' exposure to detention without bond by the
Immigration and Naturalization Service (INS), deportation, and
permanent exclusion from the United States. These results may
flow whether the defendant is an undocumented immigrant, or a
lawful permanent resident of many years. The often unrecognized
consequences of criminal convictions under several provisions
of the Immigration and Nationality Act (INA), are frequently far
more severe than the terms of the sentence in the criminal case.
These collateral consequences are mostly unintended by the lawyers
and judges involved in criminal cases, and equally unforeseen
by defendants. However, they result in separation of families,
loss of employment, INS detention, and forced removal from the
country where defendants may have spent most of their lives.
Prosecutors, defense attorneys and judges can fairly easily
determine the collateral consequences of convictions under the
INA, and, in appropriate cases, avoid those consequences by the
nature of the charge, the approach taken by the defense, and the
sentence imposed This article briefly highlights some of the issues
that should be considered in any criminal case involving a non-U.S.
citizen defendant, particularly in light of 1996 amendments to
the INA. Research into the INA, including published decisions
by the Department of Justice's Board of Immigration Appeals (BIA),
and U.S. Courts of Appeals, must be conducted in any individual
case to evaluate how a criminal case should be approached in light
of a defendant's immigrant status. Among other considerations,
these factors should be taken into account in determining whether
to proceed to trial or enter a plea. In many cases the interests
of justice will best be served by a structured plea which avoids
the risks of draconian immigration consequences resulting from
a conviction under the initial charge.
2. Convictions That Result In Deportation
From The United States
Pursuant to INA § 237(a)(2), 8 U.S.C. § 1227(a)(2),
any "alien," whether undocumented, present with a non-immigrant
visa, or a lawful permanent resident of many years, will be ordered
"deported" and removed from the United States if convicted
of any crimes as follows:
A. Crimes involving "moral turpitude," committed
within five years after the date of "admission" to the
United States, for which a sentence of one year or longer "may
be imposed" following "conviction." INA §
"Moral turpitude" is not defined in the INA. To determine
whether a particular crime involves moral turpitude, decisions
of the BIA and the federal Court of Appeals where the defendant
resides (and where he or she may eventually be placed in deportation
proceedings) should be reviewed. The quickest way to obtain this
information is through electronic research searching for the term
which describes the offense, and the term "moral turpitude."
A compilation of crimes and whether they involve moral turpitude
is also contained in the text Immigration Law and Crimes (Clark
Boardman), available in many libraries. Generally, malum in se
crimes involve moral turpitude, while malum prohibitum crimes
do not. Almost all crimes involving theft, fraud, drugs and violence
are considered to involve moral turpitude. Neither the classification
of the crime as a felony or misdemeanor, nor the sentence imposed,
weigh in the question whether an offense involves moral turpitude.
I have structured several plea agreements acceptable to defendants
and prosecutors by identifying charges which did not necessarily
involve moral turpitude, were sufficiently related to the original
charges to satisfy prosecutors, and for which a factual basis
for the pleas could be stated. For example, in one recent federal
case, the defendant was charged with making false statements in
violation of 18 U.S.C. § 1546, a crime involving moral turpitude
conviction of would have rendered the defendant subject to deportation
and future exclusion from the U.S. A plea was eventually agreed
upon involving possession of an altered passport with no intent
to use the document in the United States. 18 U.S.C. § 1546(a).
Defendant entered his plea to a superseding information. The plea
agreement states that the offense does not involve moral turpitude,
and is expressly binding on the INS.
The deportation provision applies to crimes committed within
five years of "admission" to the United States. The
term "admission" is not defined in INA. However, the
INA defines the term "application for admission" to
mean "application for admission and not to the application
for the issuance of an immigrant or nonimmigrant visa." INA
§ 101(a)(4), 8 U.S.C. § 1101(a)(4). Generally, the Government
will likely interpret the date of "admission" to mean
the date of the defendant's most recent entry into the United
States, not the date of the defendant's original entry or the
date on which the defendant obtained a visa.
To trigger deportation the conviction must involve a sentence
which "may be imposed" must be of one year or longer.
This includes all felonies. It generally involves the maximum
sentence under the statute charged, not the sentence indicated
by the Sentencing Guidelines used in federal cases.
The offense must involve a "conviction." This term
is defined in INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).
It should be considered because admissions made in the course
of a plea may involve a "conviction" for a crime other
than the statutory offense to which the plea is entered. This
is because the INA defines the term "conviction" to
include not only a "formal judgment of guilt," but also
an admission by the defendant of "sufficient facts to warrant
a finding of guilt" for a crime involving moral turpitude.
It is therefore important that the factual basis for the plea
be narrowly tailored so that admissions made in the course of
entering a plea may not be deemed by the INS to be admissions
of sufficient facts to warrant a finding of guilt to a separate
crime involving moral turpitude.
B. Multiple criminal convictions for crimes involving moral
turpitude committed any time after entry. INA § 237(a)(2)(A)(ii).
Deportation will result if the defendant is convicted, at any
time after admission to the United States, of two or more crimes
involving moral turpitude, not arising out of a single scheme
of criminal misconduct, regardless whether the defendant is confined
therefor, and regardless whether the convictions were in a single
In determining whether the convictions arose in a single scheme
of criminal misconduct, the BIA and Courts of Appeal consider
the similarity in the offenses, the proximity in time of the offenses,
and the nature of the defendant's conduct in each of the offenses.
Again, the best way to determine whether two particular convictions
would be considered to have arisen in a single scheme of criminal
misconduct, electronic research should be conducted of published
decisions of the BIA and the U.S. Court of Appeals with jurisdiction
over the area where the defendant resides. The search should locate
decisions which include the term "single scheme of criminal
misconduct," and terms which describe the offenses (or potential
offenses to which a plea may be entered).
Note that deportation may be ordered regardless whether the
two convictions were in a single or separate trials, and regardless
whether the defendant was ordered confined as part of his or her
This section makes it important for defense counsel to determine
whether the defendant has suffered any earlier convictions for
crimes involving moral turpitude. If a defendant has a prior conviction
for a crime involving moral turpitude, it is important that defense
counsel make every effort to avoid a second conviction involving
moral turpitude, even if the conviction is for a misdemeanor and
there is no exposure to a sentence of confinement. Under these
circumstances a plea agreement to a more serious offense than
may otherwise be acceptable to the defendant, but one not involving
moral turpitude, and even a period of confinement, may be the
defendant's most rational choice.
On the other hand, if the defendant was last admitted to the
United States more than five years before the commission of the
offense, and has no prior convictions involving moral turpitude,
a plea to a single crime involving moral turpitude will not result
in deportation. However, should the defendant ever suffer a second
conviction involving moral turpitude, he or she will become deportable
under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii).
C. Conviction for so-called "Aggravated Felonies."
INA § 237(a)(2)(A)(iii).
Immigrants convicted of so-called "aggravated felonies"
are deportable, regardless when such crimes were committed after
admission to the United States, and regardless of whether the
defendant is sentenced to a period of confinement. INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
The term "aggravated felony" is defined in INA §
101(a)(43)(A)-(U), 8 U.S.C. § 1101(a)(43)(A)-(U). While called
an aggravated "felony," the term applies to both felonies
and misdemeanors. Aggravated felonies include, among others, the
· Offenses that involve fraud or deceit in which the
loss to the victim or victims exceeds $10,000. INA § 101(a)(43)(M)(i);
· A theft offense (including receipt of stolen property)
or a burglary offense for which the term of imprisonment is at
least one (1) year. INA § 101(a)(43)(G);
· Murder, rape, sexual abuse of a minor, INA §
101(a)(43)(A), or a crime of violence (as defined in 18 U.S.C.
§ 16) for which the possible term of confinement is at least
one (1) year, INA § 101(a)(43)(F), or a crime relating to
the demand for or receipt of a ransom (as described in 18 U.S.C.
§§ 875-77, or 1202);
· Trafficking in controlled substances (as described
in section 102 of the Controlled Substances Act), including a
drug trafficking crime (as defined in 18 U.S.C. § 924(c)),
or any similar state statutes. INA § 101(a)(43)(B);
· Offenses relating to alien smuggling (described in
INA section 274(a)(1)(A) or (2)), except in the case of a first
offense for which the alien has affirmatively shown that he or
she committed the offense for the purpose of assisting only his
or her spouse, child or parent ("and no other individual").
INA § 101(a)(43)(N);
· Illicit trafficking in firearms or destructive devices
(as defined in 18 U.S.C. § 921, or explosives (as defined
in 18 U.S.C. § 841(c)). INA § 101(a)(43)(C);
· Money laundering (as defined in 18 U.S.C. § 1956)
or monetary transactions in property derived from specified unlawful
activities (as defined in 18 U.S.C. § 1957). INA § 101(a)(43)(D);
· Various explosive materials offenses (as defined in
18 U.S.C. §§ 842(h) or (i), or 844(d)-(i)). INA §
· Various firearms offenses (as defined in 18 U.S.C.
§§ 922(g)(1)-(5), (j), (n)-(p), or (r), or 924(b) or
(h)). INA § 101(a)(43)(E)(ii);
· Offenses relating to child pornography (described
in 18 U.S.C. § 2251-52). INA § 101(a)(43)(I);
· Offenses for which a sentence of one year or more
may be imposed relating to racketeering (described in 18 U.S.C.
§ 1962 or a second offense described in 18 U.S.C. §
1084), or gambling (described in 18 U.S.C. § 1955). INA §
· Offenses relating to the owning, controlling, managing
or supervising a prostitution business or relating to transportation
for purposes of prostitution (described in 18 U.S.C. §§
2421-23). INA § 101(a)(43)(K)(i) and (ii);
· Offenses relating to tax evasion in which the amount
exceeds $10,000 (as described in section 7201 of the Internal
Revenue Code of 1986). INA § 101(a)(43)(M)(ii)
· Falsely making, forging or altering a passport or
instrument (in violation of 18 U.S.C. § 1543), or document
fraud (as described in 18 U.S.C. § 1546), for which the sentence
which may be imposed is at least 12 months. INA § 101(a)(43)(P)(i)
· Offenses relating to commercial bribery, counterfeiting,
or forgery for which the term of imprisonment is at least one
year. INA § 101(a)(43)(R);
· Offenses relating to obstruction of justice, perjury
or subornation of perjury, or bribery of a witness, for which
a sentence of 5 years or more may be imposed. INA § 101(a)(43)(S);
· An offense relating to a failure to appear before
a court pursuant to a court order to answer to or dispose of a
charge of a felony for which a sentence of 2 years imprisonment
may be imposed. INA § 101(a)(43)(T).
An "attempt" or "conspiracy" to commit
any of the foregoing offenses is similarly deemed to be an "aggravated
felony" under the INA. INA § 101(a)(43)(U).
The INA further makes clear that the term "aggravated
felony" applies whether the offense involves (i) a federal
or state law, or (ii) the law of a foreign country for which the
term of imprisonment was completed within the previous 15 years.
INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).
The INA further provides that the term "aggravated felony"
applies to convictions entered "before, on, or after the
date of enactment of this paragraph," i.e. September 1996.
INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).
As stated above, any person convicted of an "aggravated
felony" "at any time after admission" into the
United States is deportable. INA § 237(a)(2)(A)(iii), 8 U.S.C.
D. Conviction for "high speed flight" from immigration
checkpoint. INA § 237(a)(2)(A)(iv).
Any non-citizen who is convicted of a violation of 18 U.S.C.
§ 758 relating to high speed flight from an immigration checkpoint
E. Waiver of certain convictions based upon a pardon
The convictions described above all fall with INA § 237(a)(2)(A)(i)
through (iv). These convictions will not result in deportation
if the defendant has been granted a full and unconditional pardon
by the President of the United States or a Governor of any State.
Such pardons are extremely rare and I would never enter a plea
on the theory that my client may later be granted a pardon to
avoid the deportation consequences of the plea.
F. Controlled substances convictions.
INA § 237(a)(2)(B)
The INA also contains a separate provision making deportable
any non-citizen convicted of a violation of "or a conspiracy
or attempt" to violate any law or regulation of a state,
the United States or a foreign country "relating to a controlled
substance" as defined in 21 U.S.C. § 802 (section 102
of the Controlled Substances Act), other than a "single offense"
involving possession "for one's own use" of 30 grams
or less of marijuana. INA § 237(a)(2)(B)(i), 8 U.S.C. §
I have structured plea agreements to 18 U.S.C. § 545 (smuggling
merchandise or selling merchandise improperly imported into the
United States) without mentioning that the merchandise involved
a controlled substance, or was imported in violation of a provision
in Title 18, United States Code. Such pleas, properly structured,
may avoid deportation consequences under the INA.
The INA also makes deportable any alien, even without conviction,
who is, or at any time after admission to the United States has
been, "a drug abuser or addict ..." INA § 237(a)(2)(B)(ii),
8 U.S.C. § 1227(a)(2)(B)(ii). Defense counsel should be aware
of this section when a defendant testifies or agrees to the factual
basis for a plea, even if the underlying conviction does not render
the defendant deportable.
G. Crimes involving possession or sales of firearms.
INA § 237(a)(2)(C)
Non-citizens convicted under any federal or State laws for
"purchasing, selling, offering for sale, exchanging, using,
owning, possessing or carrying" (or attempting or conspiring
to any of the foregoing) any "weapon, part. or accessory
which is a firearm or destructive device" (as defined in
18 U.S.C. § 921(a)) is deportable. INA § 237(a)(2)(C),
8 U.S.C. § 1227(a)(2)(C).
Note that the issue is not whether a defendant used a weapon
to commit a crime, but rather whether the particular offense for
which the defendant is convicted necessarily involves the possession,
attempted possession or conspiracy to possess (or sell, or carry,
etc.) a firearm or explosive device.
H. Crimes relating to domestic violence.
INA § 237(a)(2)(E)
Any non-citizen who is convicted at "any time after admission"
to the United States of a crime of "domestic violence,"
"stalking," "child abuse," "child neglect,"
or "child abandonment," is deportable. INA § 237(a)(2)(E),
8 U.S.C. § 1227(a)(2)(E).
For purposes of this section the term "domestic violence"
is defined as a crime of violence as described in 18 U.S.C. §
16, committed against a spouse or former spouse, by any person
with whom the victim "shares a child in common," or
by a person who is "cohabiting with or has cohabited with
the person as a spouse ..." Id.
This section also makes deportable any non-citizen who has
violated a protective order issued by a court and whom the court
determined has engaged in "conduct that violates the portion
of a protection order that involves protection against credible
threats of violence, repeated harassment, or bodily injury to
the person or persons for whom the protection order was issued
..." INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).
I. Crimes of misuse of visas. INA § 237(a)(3)
The INA also makes deportable any non-citizen convicted of
a violation of, or an attempt or conspiracy to violate, 18 U.S.C.
§ 1546 to the extent that statute relates to "fraud
and misuse of visas, permits, and other entry documents ..."
INA § 237(a)(3)(B)(iii), 8 U.S.C. § 1227(a)(3)(B)(ii).
I have structured a plea agreement to 18 U.S.C. § 1546
which specifically stated that while the defendant possessed an
"altered" passport, he did not intend to use it and
never used it in the United States. Prosecutors agreed that this
plea did not render the defendant deportable under INA §
237(a)(3)(B)(iii), and included language to that effect in the
3. Convictions That Result In Exclusion
From The United States
In addition to the grounds of deportation discussed in some
detail above, those involved in criminal cases in which the defendant
is a non-citizen, including a lawful permanent resident, should
review the grounds for "exclusion" contained in the
INA at section 212, 8 U.S.C. § 1182.
The grounds for "exclusion" describe which immigrants
are eligible to enter the United States. Immigrants who are "excludable"
may not enter the United States. For example, lawful permanent
resident aliens with certain convictions may not return to the
United States if they briefly depart the country. Immigrants applying
for visas will be denied if they are "excludable" because
of certain criminal convictions.
While there are some differences in the grounds for exclusion
versus the grounds for deportation, many of the grounds are similar.
Nevertheless, in any case involving a non-citizen defendant, counsel
should carefully review INA § 212(a)(2) before entering a
plea or proceeding to trial.
A. Crimes involving "moral turpitude."
INA § 212(a)(2)(A)(i).
A non-citizen is excludable from the United States if convicted
of a crime involving "moral turpitude" unless
(1) the maximum penalty possible did not exceed imprisonment
for one year and the immigrant was not sentenced to a term of
imprisonment for more than six (6) months, or
(2) the crime was committed while the immigrant was under 18
years of age, and the crime was committed and the immigrant released
from custody more than five years before the application for admission
into the United States.
See INA § 212(a)(2)(A)(i)(I) and (ii)(II) and (III), 8
U.S.C. § 1182(a)(2)(A)(i)(I) and (ii)(II) and (III).
While likely not often applicable to U.S. convictions, the
bar does not apply if the crime was "purely a political offense
..." INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).
B. Multiple criminal convictions. INA § 212(a)(2)(B)
An immigrant may be denied admission or readmission to the
United States if he or she has been convicted of "2 or more
offenses," other than a "purely political offense,"
"regardless of whether the convictions were in a single trial,"
or whether the convictions "arose from a single scheme of
misconduct," and "regardless of whether the offenses
involved moral turpitude," for which the "aggregate
sentence "actually imposed" was five (5) years or more.
INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).
This section should be particularly taken into account if the
defendant has suffered a prior conviction for a single crime involving
moral turpitude. How the current case is approached and resolved
may determine whether the defendant remains eligible for admission
into the United States in the future.
C. Controlled substance offenses. INA § 212(a)(2)(A)(i)(II)
Immigrants will be denied admission to the United States if
they have been convicted of a violation of, or a conspiracy or
attempted violation of, "any law or regulation relating to
a controlled substance as defined in section 201 of the Controlled
Substances Act, 21 U.S.C. § 802. INA § 212(a)(2)(A)(i)(II),
8 U.S.C. § 1182(a)(2)(A)(i)(II).
As stated above with reference to the deportation sections,
I believe the issue here focuses on the statute charged, not necessarily
the factual basis for the plea. For example, I do not believe
that a plea to a charge of smuggling is a violation of a law "relating
to a controlled substance." Nevertheless, in pleas I have
structured, I have made every effort to get the prosecutors to
agree that the controlled substance is not mentioned in the plea
agreement. Strategies for arriving at plea agreements are discussed
D. Controlled substance traffickers. INA § 212(a)(2)(C)
Non-citizens may be excluded from admission to the United States
if the consular officer at a U.S. Embassy (where visas are generally
processed) "knows or has reason to believe" that the
immigrant "has been an illicit trafficker in any controlled
substance," or has knowingly been an "assister, abettor,
conspirator, or colluder" with others in the illicit trafficking
in any controlled substance. INA § 212(a)(2)(C), 8 U.S.C.
This section should be considered in formulating the factual
basis for a plea, as well as whenever a defendant is considering
testifying. It does not require a conviction.
4. INS Detention of Convicted Non-citizens
A further issue to be considered is the detention consequences
defendants face under the INA following conviction. Pursuant to
INA § 236, added to the INA by section 303 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA),
the Attorney General "shall" take into custody any immigrant
· is excludable by reason of having committed any offense
described in INA § 212(a)(2) (discussed in the preceding
· is deportable for having committed offenses covered
in INA § 237(a)(2)(A)(ii) (multiple convictions involving
moral turpitude), (A) (iii) (any "aggravated felony"),
(B) (controlled substances), (C) (certain firearms offenses) or
(D) (domestic violence and other crimes);
· is inadmissible under INA § 212(a)(3)(B) or deportable
under section 237(a)(4)(B), both involving "terrorist"
Such immigrants shall be detained by the INS "when the
alien is released" from the state or federal institution
where the sentence in the criminal case was served.
Note that all immigrants convicted of "aggravated felonies"
are subject to detention under INA § 236. The broad definition
of "aggravated felonies" was discussed in some detail
Immigrants detained under § 236 may not be released on
bond. They may face detention for several months or years while
awaiting the outcome of exclusion or deportation proceedings.
The Attorney General retains some authority to release detained
immigrants under INA § 236(a)(2) (e.g. when release is necessary
to protect a witness, or a person cooperating with an investigation
into "major criminal activity"). However, it should
be kept in mind that a conviction for an "aggravated felony"
will very likely result in the automatic detention of a defendant
by the INS after any criminal sentence is served.
To boot, the 1996 amendments to the INA provide that "no
court may set aside any action or decision by the Attorney General"
to detain an immigrant under INA § 236.
5. Negotiating Plea Agreements in Cases involving
In any case in which the defendant faces potentially severe
collateral deportation, exclusion and detention consequences as
a result of a criminal conviction, these consequences should obviously
be considered in deciding how to approach the case, including
the risks of proceeding to trial and how a plea agreement may
be structured to best protect the defendant's interests. These
considerations, of course, may not be important when representing
a non-citizen who intends to return to his or her home country
and has no ties to the United States. However, for the long-time
resident, or intending lawful immigrant, these considerations
must be taken into account.
When the relevant provisions of the INA are considered in a
criminal case involving a non-citizen, it is my experience that
what initially are pitfalls and dangers, may in fact be turned
into advantages in arriving at a reasonable plea agreement.
Prosecutors obviously file charges without considering the
collateral immigration consequences of a conviction of those charges.
Indeed, in early communications with prosecutors in criminal cases,
it is my experience that they neither understand nor care about
such collateral consequences. On the other hand, I have also found
that once I have familiarized myself with such consequences in
a particular case, prosecutors can slowly be convinced that they
do matter. Over the course of several communications, I stress
that statutory sentences, including the federal Guidelines, do
not take into account the severe collateral consequences that
would follow from a conviction of certain offenses.
While stressing the defendant's willingness to reach a plea
agreement, I try to make clear that I could not recommend and
the defendant could not accept a plea which not only results in
a criminal sentence, but also may result in the defendant's automatic
detention by the INS, and have res judicata effect in subsequent
deportation and immigration proceedings. I point out that the
defendant cannot enter a plea which will later be used as a sword
in deportation proceedings, with no available defenses. I stress
that any conviction will be raised by the Government in subsequent
deportation or immigration proceedings, and that is a consequence
the defendant is willing to accept. However, the defendant is
only willing to accept a plea and conviction which leaves some
discretion in the hands of those adjudicating deportation and
immigration proceedings. The defendant cannot agree to a plea
which pretermits his or her rights in subsequent deportation or
immigration proceedings. In short, the defendant is willing to
agree to a fair and equitable resolution of the criminal case,
but not a resolution that forecloses all possible relief in later
immigration or deportation proceedings.
At the same time, I thoroughly investigate the underlying criminal
case and make my best arguments why a trial would be risky for
both the defense and the prosecution. I early on try to learn
in broad terms the minimum type of charge and sentence the prosecution
needs (or claims they need) to reach a plea agreement. This may
be, for example, a personal felony with exposure to a certain
time in confinement. I first try to reach agreement that if the
defendant consents to the minimum type of charge required by the
prosecution, the prosecution in turn agrees to accommodate the
defendant's understandable desire not to plea to a specific charge
or associated sentence that renders him or her excludable or deportable
(i.e. that the immigration consequences must be taken into account).
I have found that after several communications, most prosecutors
in state and federal courts eventually come around and agree to
take into account the direct collateral immigration and deportation
consequences that flow from certain convictions.
Once this framework for settlement has been reached, prosecutors,
who are generally unfamiliar with the INA, mostly want me to propose
a plea agreement that takes into account the INS detention, immigration
and deportation concerns we raised early in the negotiations.
This often allows greater latitude in selecting a specific statute,
the particular language within the statute used as the basis for
the plea agreement, the terms of the factual basis for the plea,
and the recommended sentence range.
At each stage of the negotiations I raise specific sections
of the INA which prevent the defendant from agreeing to one or
another provision of the plea agreement proposed by the prosecution.
I attempt to get agreement on the inclusion of specific language
which protects the defendant from the plea agreement being used
as a sword in subsequent immigration and deportation proceedings.
I repeatedly point out defendants' close ties and contributions
to the United States, love of the country, and intent to reside
here for the rest of their lives.
An example of a plea agreement reached after several months
of negotiations in the Southern District of California appears
as an addendum to this paper. This agreement, reached in a case
in which the defendant was indicted on two felonies, either of
which would have made him deportable, and was initially held without
bail, was structured in a manner fully insulates him from collateral
INS detention, exclusion and/or deportation consequences.
Early in the negotiations, the prosecution made clear that
any plea agreement had to include a felony, a justifiable factual
basis, and that if they did accommodate our immigration/deportation
concerns, they could not bind any office (including the INS) other
than the U.S. Attorney's Office making the deal. We agreed to
a plea involving a personal felony, in return for the prosecution
allowing us to structure a plea which would not have direct collateral
immigration and/or deportation consequences.
The final plea agreement addressed our concerns in several
1. The particular portion of the statute involved in the plea
does not require a finding of moral turpitude, and the agreement
states that the plea does not involve moral turpitude.
2. The plea states that the conviction is not for an "aggravated
felony" as that term is used in the INA.
3. The plea states that the conviction does not render the
defendant subject to exclusion (i.e. he remains eligible to obtain
a visa in the future);
4. The plea states that in the event the INS ever attempts
to use the plea agreement in a deportation hearing, the plea may
be withdrawn by the defendant (something we assessed was highly
unlikely to ever happen);
5. The plea agreement by its terms is binding not just on the
U.S. Attorney's Office for the Southern District of California,
but also on the INS.
To obtain this agreement I had to negotiate not only with the
U.S. Attorney's Office, but also with the INS and its counsel.
However, in general it is probably preferable not to get the INS
directly involved unless defense counsel has a working relationship
with INS counsel, and is prepared to spend substantial time convincing
them that the proposed plea agreement best serves the interests
of the United States.
The defendant in this plea agreement subsequently appeared
in deportation proceedings where the plea and conviction were
brought to the attention of the Immigration Judge. The facts that
the defendant had accepted some level of responsibility for his
criminal conduct, and was successfully fulfilling the terms of
his probation, were offered as positive factors in the deportation
hearing. The INS, which had charged the defendant with overstaying
his visa, never amended its charges to rely upon the conviction,
although they argued that the conviction was a factor to be considered
by the judge in weighing discretionary relief from deportation.
The defendant was granted affirmative relief, and found not
to be deportable by an Immigration Judge. His conviction did not
bar him from such relief. In short, through a carefully crafted
plea agreement, the defendant ultimately was able to plead guilty
to a relatively minor felony, received only probation (teaching
Buddhism to California detainees!), and completely escaped the
harsh immigration and deportation consequences that undoubtedly
would have followed had he proceeded to trial and been found guilty
on the initial charges on which he was indicted.
Immigrants can find some measure of justice in the criminal
courts despite the draconian immigration and deportation penalties
they face for many types of convictions. Once explained the scope
of those penalties, defendants generally become more willing to
consent to a reasonable plea agreement. More than anything, the
process requires the willingness of defense counsel to become
fully familiar with applicable INA penalties, and then to effectively
use them as a means to direct the framework for a plea agreement
that is acceptable to the defendant and the prosecution. While
this may involve delving into unfamiliar legal territory, the
results achieved will far outweigh the required effort.