Safe Pleas To Avoid Removal

You are charged with a crime, and your criminal defense attorney tells you that you are facing immigration consequences. If you are lucky, you are informed by your attorney exactly what the immigration consequences are. You are told of two options – take a plea to the charge(s), or go to trial. If you take the plea, you might be able to end your criminal case and custody, but you will be facing immigration proceedings, and possibly immigration detention. If you decide to exercise your right to go to trial, you will be taking a risk of the jury finding you guilty and serving time in jail.

Fortunately, you have one more option: take a safe plea to avoid removal. Although not initially offered by the District Attorney’s office, this immigration safe plea is a counteroffer that they will consider, assuming your attorney suggests it. Unfortunately, most attorneys do not suggest immigration safe pleas to their clients or to the District Attorney’s Office because they do not know a) client is facing immigration consequences, and b) how to defend against them. However, as explained under Cleaning Criminal Records, your criminal counsel has an ethical duty to defend you from immigration consequences.

The duty to advise of immigration consequences does not stop short at just advising the client of the impending immigration disaster. Rather, counsel’s duty extends beyond- to attempting to avert the disaster. This means looking in the neighborhood of lesser, greater, or related dispositions for an immigration-harmless alternative. Also, competent counsel will attempt to negotiate a disposition that will avoid deportation or other adverse immigration consequences if possible and if that is the client’s desire.

In People v. Barocio, (1989) 216 Cal.App.3d 99, the California Appellate Court found ineffective assistance of counsel where defense counsel failed to file Judicial Recommendation Against Deportation or seek 364 day sentence. (A sentence of 365 days or more would subject the defendant to removal.) In this case, it was unnecessary for the defendant to establish that this motion would have been granted; it was sufficient that the defendant had a right to be made aware of the motion and to have the motion made. This was also the holding in People v. Bautista (2004) 115 Cal.App.4th 229, where counsel correctly told the defendant that he “would” be deported for possession of sale conviction, but failed to attempt to plead up to “offer to sell” or “transportation”.

In your case, there does exist another plea, other than the one you are being offered, which will allow you to stay in the United States and avoid deportation and separation from your loved ones. And, the District Attorney will be agreeable to this immigration safe plea if your counsel is able to effectively explain the immigration consequences of your charges and how this alternative plea will avoid them. If you have been accused of a crime, call us today for a free consultation at (212) 321-0226. Your Lavy Lawyer will keep you out of prison, out of immigration proceedings, and keep you in the United States .

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