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Criminal Convictions And Their
Draconian Deportation Consequences

by Peter A. Schey
(December 1997, Los Angeles, California)

 

Peter Schey is a Los Angeles attorney who works on retained cases principally involving constitutional and criminal law. He also serves as the Executive Director for the Center for Human Rights and Constitutional Law, a non-profit organization which engages in complex federal class action civil rights litigation.

 

CRIMINAL CONVICTIONS AND
THEIR DRACONIAN DEPORTATION CONSEQUENCE

 

1. Introduction

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 § 237(a)(2)(A)(i).

"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 trial.

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 sentence.

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 following offenses:

· 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 § 101(a)(43)(E)(i);

· 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 § 101(a)(43)(J);

· 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) and (ii);

· 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. § 1227(a)(2)(A)(iii).

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 is deportable.

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. § 1227(a)(2)(B)(i).

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 plea agreement.

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 below.

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. § 1182(a)(2)(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 who

· is excludable by reason of having committed any offense described in INA § 212(a)(2) (discussed in the preceding section above);

· 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" activity.

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 above.

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
Non-citizen Defendants

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 respects:

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.


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