Immigration status holds important legal implication that you will want to come ensure to counsel your client on. The law is constantly evolving and thus it is important to follow these specific steps.

1

Immigration and Criminal History

 The first step to adequately counseling a noncitizen defendant is to determine their immigration status, including both their current status and any facts pertinent to eligibility for relief from removal.  Counsel must also determine the defendant's complete criminal history at this stage.  Though to a certain extent counsel will have to rely on their client's recollection, it is also a good idea to verify the information provided when possible.  For example, if a client reports they are a lawful permanent resident (LPR) but cannot produce their LPR card, counsel should consider the possibility that the client is not an LPR when assessing the case.

2

Analyze immigration consequences

Based on the information gathered about the defendant's immigration status and criminal history, counsel must analyze the immigration consequences of the potential plea and/or a conviction on the charges the defendant is facing.  In some cases, this analysis will be straightforward, while in others it will be complex and may need to be reevaluated multiple times throughout the case as plea offers or other possible resolutions evolve.  The analysis must incorporate all "specific statutory consequences" including removability, inadmissibility, ineligibility for relief from removal, mandatory detention during immigration proceedings, denial of naturalization, and consequences for immediate family.  Morales Diaz, No. 15-0862 at 14-15. 

3

Advise client of immigration consequences

Importantly, Padilla is clear that silence on advising the client of immigration consequence constitutes ineffective assistance of counsel.  Padilla v. Kentucky, 559 U.S. at 370.  Merely advising a defendant to seek immigration counsel is effectively equivalent to silence and is inadequate, because that advice, or lack thereof, does not inform the defendant of the potential immigration consequences they face.  Morales Diaz, No. 15-0862 at 11-15; Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

4

After advising client, determine their priorities in resolving their case

Finally, after advising the defendant, counsel must ascertain the defendant's priorities in resolving the case and defend the case accordingly.  Padilla, 559 U.S. at 373.  If the defendant's priority is a good immigration result, they may be willing to accept a less-favorable resolution of the criminal case to achieve that goal.  Defense counsel must therefore be aware of the options for resolving cases in an immigration-safe way.  And because some of these resolutions may seem counterintuitive, defense counsel should be vigilant in protecting the defendant's priorities and explaining to judges and prosecutors why those priorities require a particular approach to resolving the case.