By Norton Tooby and Katherine Brady
 
Be confident that you are providing effective counsel when advising your client on immigration consequences as required by the US Supreme Court in Padilla.  
 
Norton Tooby and Katherine Brady, both outstanding California attorneys and nationally known experts in crimes and immigration, take you through the critical stages of a criminal case, identifying the immigration concerns and delivering the strategies and advice you need for effective resolution.
 
Use the only California-specific book on this topic
Protect your client’s immigration interests in both misdemeanor and felony cases
Learn the best practices for research, investigation, negotiation, and resolution
Identify alternative acceptable pleas and avenues to post-conviction relief
Prevent immigration holds from sabotaging your criminal dispositions
Save yourself and your clients many hours of expensive research.
Includes charts, checklists, diagnostic questionnaires, scripts, and additional resources
 
 
EXCERPT FROM CHAPTER 1
 
§1.1    I.    THE MISSION OF THIS BOOK
This work has two central goals:
•    Assist counsel with protecting the immigration status of noncitizen defendants facing criminal charges; and
•    Assist counsel with mitigating the harm the immigration status of the noncitizen-defendant can do in a criminal case.
The overlap between criminal and immigration law has become complex and fraught with risk as Congress increasingly relies on noncitizens’ criminal histories to trigger
•    Mandatory immigration detention (without the possibility of release on an immigration bond);
•    Deportation;
•    Inadmissibility; and
•    Bars to relief that might otherwise prevent “removal” (a term that can include both being deported out of, and barred from admission into, the United States).

Preventing an immigration-related disaster.
Defense counsel’s duty to protect a defendant’s immigration status has received increasing attention, culminating in the U.S. Supreme Court’s 2010 decision recognizing that deportation (and other adverse immigration consequences) has become, in effect, an additional penalty inflicted on noncitizens as a result of criminal cases. Padilla v Kentucky (2010) 559 US 356, 130 S Ct 1473 (counsel’s failure to advise, or affirmative misadvice, concerning actual immigration consequences at plea constituted ineffective assistance of counsel in violation of U.S. Constitution). Beyond advising the defendant about the immigration consequences of a proposed disposition, if it is important to the defendant, defense counsel also must attempt to prevent or lessen the consequences. As the Court acknowledged, preserving the ability to remain in the United States “may be more important to the client than any jail sentence.” Padilla, 559 US at 368, 130 S Ct at 1483. Defense counsel may do this either by negotiating an immigration-neutral disposition, or, if necessary and advisable, taking the case to trial. See Padilla, 559 US at 373, 130 S Ct at 1485 (immigration as a factor in plea bargaining); People v Bautista (2004) 115 CA4th 229, 241 (counsel ineffective for failing to recommend alternate plea to lessen immigration consequences).

Preventing a criminal-case disaster.
Defense counsel also has the duty to try to minimize the conviction and sentence resulting from the criminal case. Immigration authorities are increasingly identifying noncitizen defendants during the pendency of a criminal case and lodging “immigration holds” against them, signaling an intention to consider removing noncitizen defendants from the United States on their release from criminal custody. Because it is impossible to challenge immigration charges until defendants pass into immigration custody, and because many criminal convictions, including misdemeanor convictions, trigger “mandatory immigration detention,” noncitizen defendants are effectively barred from the benefit of many alternative resolutions to incarceration that might otherwise be available as part of the disposition of the criminal case, such as work or school furlough, drug or alcohol treatment, anger management classes, or even release on probation or parole. For more information on immigration holds and detention, see chap 4. In order to be effective in minimizing the disposition of the criminal case for a noncitizen defendant, defense counsel must ascertain the risk of mandatory immigration detention and attempt to eliminate it; only then can the defendant be released from custody to participate in alternatives to incarceration.

§1.2    A.    For Criminal Counsel
This book is primarily designed to help criminal defense counsel. It focuses on preserving noncitizen defendants’ immigration status, but counsel can also use the techniques described here to defend against the purely criminal consequences of a criminal case. For example, if a defendant is not fluent in English, precisely identifying not only the defendant’s language but also the exact dialect is important to enable counsel to discuss with the defendant not only the immigration consequences of the case, but also the facts of the case as they relate to guilt or innocence. The same is true of learning about the defendant’s culture, immigration situation, detention status, and many other topics discussed in this book.

If criminal defense counsel consults effectively with an attorney who is an expert in criminal immigration law, he or she does not need to learn all the complexities of immigration law or keep up to date with developments; the expert will do so. Some immigration counsel are experts in the immigration consequences of crimes. Increasingly, defender organizations are contracting with experts or training their own in-house experts. Criminal defense counsel must consult directly with an expert or do detailed immigration research themselves, on every case, to make sure the strategy is the correct one to achieve the best possible outcome with respect to both the criminal and immigration goals of the client.

In 2013, California enacted Bus & P C §§6240–6243 and 22443.1 and amended Bus & P C §§22442 and 22442.3 to prohibit attorneys and immigration consultants from demanding or accepting payment for any “immigration reform act services” before enactment by Congress of an “immigration reform act” that authorizes undocumented immigrants to attain lawful status under federal law, and to require attorneys who provide such services to inform their clients where they can report complaints about the attorney.

§1.3    B.    For Immigration Counsel
Immigration counsel will also find this book useful. It may assist them with advising and working effectively with criminal defense counsel, and directing them to additional sources of information. Immigration counsel also can learn about the criminal-law world so as better to represent their clients in immigration proceedings
 
§1.4    C.    For Both Specialties
Both criminal and immigration counsel will find this book useful as a discussion of the overlap between criminal and immigration law.