Where not so long ago criminal lawyers could just be criminal specialists, the Courts now require that we advise the accused of the immigration consequences of a plea. This is a significant new burden which this writer welcomes. Not only must one know the immigration status of every non-citizen client, one must also know what could happen to him or her for every offense pled to. The goal is to negotiate a resolution that minimizes the adverse immigration consequences of a plea
Factual Basis for a Plea
When a plea is taken the Court is required to ascertain whether sufficient facts exist to support the plea. In the old days this requirement was satisfied by the defense attorney simply asserting that there was. Now both prosecution and the defense must agree to the behavior that forms the basis for the plea. Most of the time it is in the police reports or preliminary hearing transcript but when but together with the obligation to know immigration consequences this becomes tricky. The immigration court will consider the entire record of conviction. If that includes a police report that describes deport-able behavior not plead to problems may well arise. Defense lawyers must now know not only what will happen if the client pleas but what are the consequences of any facts he agrees to.
This requirement, that a lawyer adequately investigate every case, may seem to be a no brainier but the situation is not always so simple. Many people want to plead to something just to get out of jail. There is no time to have an investigator do his work. Are we required to say "You stay in jail until I've had this checked out?" The Courts seem to say yes. Another complication is that the lawyer cannot do his own investigation no matter how good a job he does. He must have an investigator to do this. In financial hard times, like the present, courts are reluctant to authorize large investigator bills. Does the attorney have to hire an investigator anyway. The Courts say yes.
No matter how tough it is for the lawyer, your lawyer is not doing his job without knowing immigration consequences of a plea, including factual basis, and does not have an independent investigator to help him evaluate the case. If your lawyer is not doing all of these things you need to find a replacement.