Immigration consequence analysis performed before a criminal plea is finalized.
Why the analysis happens before, not after, the plea
Once a plea is entered and a conviction results, the immigration consequences generally attach regardless of what the parties intended at the time. Reviewing the immigration effect of a specific charge, and of realistic alternative charges, before the plea is entered preserves the ability to negotiate around a consequence that might otherwise be unavoidable later.
What the analysis involves
A pre-plea analysis compares the immigration consequences of the charge as filed against realistic alternative charges or dispositions, so that criminal defense counsel and the client can weigh the criminal exposure and the immigration exposure together rather than sequentially.
- Reviewing the exact statutory elements of the charged offense against immigration law's categories of removable or inadmissible conduct.
- Identifying whether a specific sentence length, type of disposition, or amended charge would materially change the immigration analysis.
- Assessing the client's current immigration status and history so the analysis reflects the individual's actual exposure, not a generic worst case.
- Communicating the analysis to criminal defense counsel in terms that can inform plea negotiations.
Working with criminal defense counsel
This analysis is designed to support the criminal defense attorney's negotiation, not replace it. The immigration attorney identifies which potential outcomes carry which immigration consequences; the criminal defense attorney remains responsible for the criminal case and any decision about how to proceed with it.
When there is limited time
Plea deadlines are often short. A focused analysis addressing the specific charge and the client's specific immigration status can generally be produced more quickly than a comprehensive case review, and can still meaningfully inform a time-sensitive decision.
Answers
Frequently asked questions
- Can this analysis guarantee my plea won't affect my immigration status?
- No. The analysis identifies the likely immigration consequences of specific options based on current law and the individual's facts, so an informed decision can be made. It cannot guarantee an outcome, since immigration consequences ultimately depend on how the law is applied to the final disposition.
- Will my criminal defense attorney need to change their strategy?
- Not necessarily. The goal is to give criminal defense counsel additional information about immigration consequences so it can be factored into a strategy that counsel is already developing, not to direct the criminal defense itself.
- What if the prosecutor's only offer has serious immigration consequences?
- In that situation, the client and criminal defense counsel need to weigh the criminal exposure of proceeding to trial or seeking a different resolution against the immigration consequences of the offer, a decision that depends heavily on the specific facts and cannot be generalized.
- How fast can this analysis be completed?
- It depends on the complexity of the charge and how quickly the client's immigration history can be gathered, but a focused analysis on a specific proposed plea can often be turned around faster than a comprehensive review, which is important given typically short plea deadlines.
Official sources
Consult the official sources above for current rules and procedures.