Overview
Rigorous compliance with Padilla mandates and protection of noncitizen defendants requires systematized approaches to crimmigration practice. This section provides checklists, coordination protocols, and reference materials for criminal defense and immigration practitioners.
Intake Questionnaire
Mandatory Immigration Status Assessment
The foundation of crimmigration competency is immediate, accurate identification of immigration status. Silence, assumptions, or reliance on informal statements lead to Sixth Amendment violations.
Required Intake Elements
| Element | Information Needed |
|---|---|
| Immigration status | LPR, undocumented, visa holder, asylee, TPS, DACA |
| Date of entry | Precise date of initial U.S. entry |
| Method of entry | Inspection at port vs. entry without inspection |
| Prior ICE contact | Previous arrests, detention, removal proceedings |
| Removal orders | Prior orders of removal, voluntary departure |
| Current applications | Pending naturalization, adjustment, asylum |
| Family status | U.S. citizen spouse, children, parents |
| Employment authorization | Current work permit status |
Sample Intake Questions
- Were you born in the United States?
- Are you a U.S. citizen? (If yes, verify documentation)
- What is your current immigration status?
- When did you first enter the United States?
- How did you enter? (With inspection at port of entry? Border crossing?)
- Have you ever been arrested or detained by immigration officers?
- Have you ever been ordered deported or given voluntary departure?
- Do you have any pending immigration applications?
- Do you have a U.S. citizen or LPR spouse, children, or parents?
- What is your priority: avoiding jail time or avoiding deportation?
Immigration Consequence Analysis
Step 1: Identify Charges
For each charge, document:
- Statute and code section
- Maximum possible penalty
- Elements of the offense
Step 2: Cross-Reference
Using quick-reference materials, determine:
| Question | Resource |
|---|---|
| Is this a CIMT? | CIMT chart by state |
| Is this an aggravated felony? | INA § 101(a)(43) categories |
| What sentence triggers aggravated felony? | Threshold chart |
| Is this a controlled substance offense? | Federal schedule comparison |
| Is this a deportable DV offense? | INA § 237(a)(2)(E) analysis |
Step 3: Document Consequences
Create written analysis including:
- Specific grounds of removability triggered
- Effect on current immigration status
- Impact on pending applications
- Effect on future naturalization
- Potential relief options
Coordination with Immigration Counsel
When to Consult
| Scenario | Consultation Recommended |
|---|---|
| Any noncitizen client | Yes - at minimum, verify status |
| Complex immigration status | Essential |
| Pending immigration applications | Essential |
| Unclear consequences | Essential |
| Aggravated felony risk | Essential |
| Relief eligibility questions | Essential |
Information to Share
| Information | Purpose |
|---|---|
| Immigration status details | Assess vulnerability |
| Proposed charges/pleas | Analyze consequences |
| Potential sentence | Threshold analysis |
| Family composition | Relief eligibility |
| Prior criminal history | Cumulative effects |
Joint Defense Agreements
Purpose
A Joint Defense Agreement (JDA) legally protects shared communications between criminal defense and immigration counsel under the common interest doctrine.
When Required
| Scenario | JDA Needed? |
|---|---|
| Sharing case strategy | Yes |
| Discussing client admissions | Yes |
| Coordinating plea approach | Yes |
| General consultation | Recommended |
Essential JDA Elements
| Element | Requirement |
|---|---|
| Parties | Identify all counsel |
| Scope | Define covered matters |
| Common interest | Articulate shared defense objective |
| Confidentiality | Confirm privilege expectations |
| Client consent | Document mutual client authorization |
| Ethical duties | Acknowledge duties to client |
| Document protocols | Establish transmission procedures |
Crime-Fraud Exception
JDAs cannot shield communications intended to perpetrate fraud upon criminal or immigration courts. Ensure all advice is legitimate defense strategy.
Reference Materials
National Immigration Project (NIPNLG)
| Resource | Content |
|---|---|
| Practice Advisories | Analysis of crimmigration issues |
| Categorical Approach Materials | State-by-state analysis |
| CIMT Charts | Offense categorization by state |
| Aggravated Felony Charts | Threshold analysis |
Website: nationalimmigrationproject.org
Immigrant Defense Project (IDP)
| Resource | Content |
|---|---|
| Quick Reference Charts | New York specific |
| Practice Advisories | Defense strategies |
| Training Materials | Padilla compliance |
| Judicial Benchcards | Court reference materials |
Website: immigrantdefenseproject.org
Additional Resources
| Organization | Focus |
|---|---|
| ILRC (Immigrant Legal Resource Center) | California focus, national resources |
| CLINIC | Nonprofit immigration practice |
| ABA Commission on Immigration | Standards and guidelines |
| State defender offices | State-specific materials |
Documentation Requirements
Pre-Plea Documentation
| Document | Purpose |
|---|---|
| Written advisement | Document immigration advice provided |
| Client acknowledgment | Confirm understanding |
| Consequence analysis | Memorialize research |
| Consultation notes | Record immigration counsel input |
Plea Documentation
| Document | Purpose |
|---|---|
| Plea agreement | Ensure immigration-safe terms |
| Colloquy transcript | Preserve record of advisements |
| Sentence order | Document precise terms |
Post-Plea Documentation
| Document | Purpose |
|---|---|
| Final judgment | Confirm sentence imposed |
| Certificate of disposition | Immigration proceeding evidence |
| Record of conviction | For categorical analysis |
Client Communication
Explaining Immigration Consequences
| Principle | Implementation |
|---|---|
| Clear language | Avoid legal jargon |
| Specific | State exact consequences |
| Written | Provide written summary |
| Interpreter | Use qualified interpreter if needed |
| Confirm understanding | Ask client to explain back |
Discussing Options
| Consideration | Discussion Points |
|---|---|
| Trial vs. plea | Immigration consequences of each |
| Sentence tradeoffs | Jail time vs. deportation |
| Charge bargaining | Alternative offenses available |
| Family impact | Effect on U.S. citizen relatives |
| Priority ranking | What matters most to client |
Informed Consent
Document client's:
- Understanding of consequences
- Priority between jail and deportation
- Decision to accept or reject plea
- Acknowledgment of advice provided
Pre-Plea Checklist
Intake Phase
- [ ] Completed immigration status questionnaire
- [ ] Verified citizenship/immigration status
- [ ] Documented date and method of entry
- [ ] Identified family composition
- [ ] Determined client priorities
Analysis Phase
- [ ] Identified all charges and elements
- [ ] Cross-referenced CIMT charts
- [ ] Analyzed aggravated felony thresholds
- [ ] Checked controlled substance implications
- [ ] Assessed domestic violence grounds
- [ ] Consulted immigration counsel (if needed)
- [ ] Created written consequence analysis
Negotiation Phase
- [ ] Identified immigration-safe alternatives
- [ ] Calculated sentence thresholds
- [ ] Prepared charge bargaining options
- [ ] Documented plea strategy
Pre-Plea Phase
- [ ] Provided written immigration advisement
- [ ] Obtained client acknowledgment
- [ ] Documented informed consent
- [ ] Confirmed client understands consequences
- [ ] Client stated priority (jail vs. deportation)
Plea Entry
- [ ] Plea agreement reflects safe terms
- [ ] Sentence within safe threshold
- [ ] Record does not identify aggravating elements
- [ ] Colloquy documents advisement
Post-Conviction Coordination
If Conviction Triggers Removal
| Step | Action |
|---|---|
| 1 | Immediately notify immigration counsel |
| 2 | Preserve all case records |
| 3 | Assess post-conviction relief options |
| 4 | Coordinate removal defense strategy |
| 5 | Refer to immigration attorney for representation |
If Post-Conviction Relief Sought
| Coordination | Purpose |
|---|---|
| Joint strategy | Align criminal and immigration goals |
| Motion drafting | Ensure immigration efficacy |
| Evidence gathering | Support Padilla/prejudice claims |
| Timing | Coordinate with immigration proceedings |
Related Resources
- Padilla Requirements - Defense counsel duties
- Plea Bargaining Strategies - Safe dispositions
- Post-Conviction Relief - Vacating convictions
- Legal Aid Directory - Finding immigration counsel