Counsel
should advise the client specifically on the exact immigration
consequences the plea will have. A general warning that
the client may or even would be deported is not sufficient:
Would the client be permanently excludable and never in
future able to obtain lawful status again? Would the client
become ineligible for a form of relief that was presently
or potentially available?
Appendix
F, infra, contains a thumbnail sketch of many different
forms of immigration relief available to immigrants, with
a description of the immigration consequences for each related
to crimes.FN274
A thorough job of informing the client of the immigration
consequences of a particular plea bargain would include
going down this checklist and telling the client:
a. what
the INS will do to him or her as a result of this
conviction;
b. the
different forms of immigration relief that will
be foreclosed to the client as a result of this
conviction; and
c. the
forms of immigration relief that will be open to
the client, even with this conviction, and what
the client must do to qualify for each.
Example:
A sample warning of the exact immigration consequences that
will flow from a firearms conviction is the following. Jose
has lived in this country as a lawful permanent resident
for 30 years, and is married to a U.S. citizen. He is being
offered a plea of guilty to a misdemeanor charge of carrying
a concealed firearm in violation of California Penal Code
§ 12025.
He should
be told:
"If you enter
a plea to a firearms charge, even if you are a permanent
resident with U.S. citizen relatives who has lived here
for 30 years, the conviction will have the following
immigration consequences for you:
"a. You
will be deportable.
"b. If
you are deported, your lawful permanent resident status
will be revoked.
"c. After
deportation, you would become excludable for five
years from the United States, i.e., you would be
prevented from re-entering the U.S. on any basis
whatsoever unless you can get a waiver of excludability.
"d. You
may be eligible for cancellation of removal if you
meet certain requirements, and you may be able to
adjust your status and get a new green card because
of your marriage to a U.S. citizen."
PRACTICE
TIP: This process should involve analyzing what immigration
relief your client might be or have been eligible for. This
can be done by reviewing Appendix F, infra.
