Sunday, February 21, 2016

Finding safe havens for alien criminal defendants

A “safe haven” in immigration parlance is a disposition of a criminal case against an alien that does not trigger adverse immigration consequences like removal (deportation).

An experienced and an excellent immigration/criminal defense attorney who has a lot of imagination and the patience, persistence, and perseverance to do research and fight for you should be able to find a safe haven for an alien criminal defendant. If the lawyer you hired cannot find a safe haven, fire the ineffective lawyer and get one who can find a safe haven.
A safe haven can include outright acquittal, dismissal of the charge, a charge bargain, or a sentence bargain.

Charge bargain
A charge bargain (plea bargain) involves negotiation between the prosecutor and defense counsel so that the charge will be reduced to a non-deportable offense.

For example, where an alien is charged criminally for theft which is a crime involving moral turpitude and therefore a deportable offense, defense counsel can negotiate with the prosecutor to reduce the charge to trespass. In one case handled by my attorney son Noel, a foreign student entered a convenience store, opened a fast food cabinet, took out a sandwich, went to a corner and ate the sandwich. As he left the store without paying, a security guard stopped him and asked if he had paid for the sandwich. The surprised student hesitated to answer but when the guard pointed to a security camera in the ceiling, the student admitted he did not pay. The student was charged with theft. My son Noel represented the student. He told the prosecutor that if the student was convicted he would be placed in deportation proceedings. The prosecutor was sympathetic and after contacting the convenience store, he told Noel that if the student paid the value of the sandwich he would amend the charge by reducing it to trespass which is a non-deportable offense if the student agreed to plead no contest. The judge agreed to defer acceptance of the no contest plea (DANC), meaning that if the accused did not violate any law and otherwise complied with the terms of the plea agreement for a stated period (usually 6 months), the judge would dismiss the charge. The student was saved from being placed in removal proceedings.

Other examples of deportable offenses that can be reduced to non-deportable offenses through negotiations between the prosecutor and defense counsel include a charge of domestic violence reduced to assault in the third degree (under Hawaii law), sexual assault of a minor reduced to assault in the third degree (under Hawaii law).

Sentence bargain
A sentence bargain involves negotiation between the prosecutor, defense counsel, and the judge so that the sentence to be imposed will be reduced to a non-deportable sentence.

For example, my son, Noel, and I represented in immigration court a Filipino who was placed in removal proceedings because he had a conviction (after pleading guilty) for slaughtering a dog which he intended to have for dinner and was sentenced to one year in jail. Under the immigration law, this was an aggravated felony because it was characterized as a “crime of violence” for which the term of imprisonment is at least one year. If he had a competent criminal defense attorney, the attorney should have negotiated with the prosecutor and the judge so that the sentence imposed should have been 364 days (less than one year) and therefore the offense would not have been an aggravated felony and would not be a deportable offense. Noel went back to the criminal court and asked the judge to change the sentence by reducing it to 364 days. The judge agreed. Noel asked the Immigration Judge to terminate the deportation case because the offense was no longer deportable. The Filipino called me while I was at the Republican convention in Florida expressing his gratitude for having been saved from deportation. I was surprised because I did not know the immigration judge had terminated the case.

Noel also represented a Filipino who was convicted of assault in the second degree punishable by five years in jail. He persuaded the judge to sentence the Filipino to probation only with no jail term. The Filipino was not placed in deportation proceedings.

RECOMMENDATION: If the criminal defense attorney you hired fails to negotiate with the prosecutor in order to reduce the charge or to reduce the sentence so that it will not result in deportation, and as a result you are placed in deportation proceedings, you should talk to another lawyer to determine whether you should file charges of ineffective assistance of counsel against your criminal defense attorney and have your conviction or sentence set aside and thereby avoid deportation.      See U.S. v Rodriguez-Vega, No. 13-56416 (9th Cir. 08/14/15) (Court of Appeals vacated an alien’s conviction of misdemeanor attempted transportation of illegal aliens, upon the alien’s petition under 28 U.S.C. § 2255, holding that the alien defendant’s counsel was ineffective in failing to advise the alien that her plea agreement rendered her removal from the United States a virtual certainty, and that the alien was prejudiced because the alien showed that but for counsel’s deficient performance, the alien would have negotiated a different plea agreement not requiring her removal or, alternatively would have gone to trial).

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has also a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: Website: He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with retired Manila RTC Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

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