Safe Havens

Once a potential safe haven has been identified, it is important to evaluate how safe it is.  It is urgent to recognize that no safe haven is entirely safe.  The underlying acts may trigger a conduct-based ground of deportability, and no safe haven conviction, no matter how safe, can protect against this.[1]  The government may not want to follow the law; an unreasonable immigration Judge could rule that a safe haven triggers a ground of deportation.  The BIA may issue a streamlined dismissal of the appeal, and the circuit court may hold it has no jurisdiction to consider a petition for review.  The government or courts may not understand the argument as to why the safe haven is a safe haven.

            It can require a complicated analysis to evaluate the chances of success for a given safe haven.  This chapter will identify and discuss some of the more important factors that will play a part in determining the chances that a client who obtains a certain safe haven can in fact avoid deportation or achieve other goals on account of it.

            Although criminal and immigration counsel may refer to this book at different stages in the overall process (i.e. pre-plea, during immigration proceedings, on appeal of the criminal or immigration case, while seeking post-conviction relief, and during prosecution for illegal re-entry following deportation), the ultimate question posed by this chapter is whether a reviewing court will view the identified safe haven as truly “safe” in whatever sense it needs to be safe for the client.  For a discussion of evaluating the chances of obtaining post-conviction relief, and also for obtaining an immigration safe pre-plea disposition, see N. Tooby, Post-Conviction Relief for Immigrants (2004) and N. Tooby, Criminal Defense of Immigrants (2003).

[1] See § 1.16, supra; Appendix A, Grounds of Deportation, infra.