Opinion Letters–Plea Recommendations
The Supreme Court in Padilla emphasized that “informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process.” The Court encouraged both defense counsel and prosecutor to discuss the impact of pending charge on a client’s immigration status during plea negotiations.
In order to convince a prosecutor to take into account a client’s immigration status, the first step is to explain the serious immigration consequences of a pending charge. I offer detailed opinion letters that defense counsel may share with prosecutors during the course of plea bargaining. My opinion letters not only describe the immigration consequence, but I also provide recommended plea proposals as well. Given the fluid nature of plea bargaining, my services include a written assessment of counter-offers and follow-up recommendations throughout negotiations.
I have purposely selected two opinion samples that demonstrate the scope of my services. I help criminal defense attorneys and their clients with serious felony charges in federal court as well as ordinance violations. I represent noncitizen defendants regardless if they are here lawfully or not. The reason is that even a minor charge, such as an ordinance charge for possession of drug paraphernalia, may carry severe immigration consequences.
Long-time permanent residents are not immune from deportation if convicted of certain offenses. However, as shown in the first sample opinion letter, a permanent resident may avoid deportation even with a plea to a felony depending on the client’s length of residency, lack of criminal record, and the nature of the felony itself.
Opinion Letters–Sentencing Memoranda
In some cases, a conviction may only result in a serious immigration consequence if coupled with a particular sentence. For lawful permanent residents, a sentence of one year or longer (whether stayed or actually imposed) for certain offenses will carry a severe immigration consequence. A permanent resident convicted of an aggravated felony is ineligible for discretionary relief in immigration court. That is why courts have often noted that an aggravated felony conviction results in “automatic deportation” even for lawful permanent residents.
My first sample sentencing memoranda highlights the importance of avoiding the aggravated felony designation even if the client is deportable under a separate provision. A permanent resident convicted of a deportable offense may apply for discretionary relief as long as he or she has not been convicted of an aggravated felony.
The second sample illustrates that undocumented immigrants have a lot to lose at the sentencing stage as well. In order for an undocumented person to maintain relief in immigration court, an inadmissible or deportable conviction must be avoided all together. In addition, an undocumented immigrant will be foreclosed from seeking cancellation of removal if incarcerated for an aggregate total of 180 days or more. Immigration law contains a definition of “good moral character,” which includes aggregate jail time of 180 days or more.