Safe Havens

This chapter will focus on how to construct a disposition in a criminal case that does not create or support a ground of deportation.  Leaving aside dispositions that are not convictions, see Chapter 4, supra, this can be done in two ways:

1.      Construct a record of conviction that establishes conviction of a non-deportable offense, or

2.      Construct a record of conviction that does not specify whether the conviction triggers deportation or not.  This is sufficient to avoid deportation, because the government bears the burden of proving the conviction falls within a ground of deportation, and if the record is unclear, the government cannot do so.  See § § 5.24-5.25, supra.

Since counsel has now identified a range of possible safe havens, it is necessary to settle on one specific safe haven as the target disposition of the case.  This frequently requires negotiation with the prosecution,[1] and establishing that the court will accept the disposition.  Once the particular safe haven has been identified, the task is to construct in criminal court a disposition that will not trigger deportation under any ground.  See Chapter 5, supra. 

            The identification of a safe haven includes specifying all of the essential elements of a safe haven, including the statute and subdivision of conviction, the particular offense of conviction within the statute if the statute is divisible, the essential elements of the offense of conviction, the wording of the charge to which a plea will be entered, the wording of the plea that will be entered, the content of any factual admissions made as part of a plea agreement or plea colloquy in court, the contents of any stipulation as to the facts of the case that is entered as part of the disposition, the specific sentence that will be imposed, and the contents of the judgment.  See § § 5.53, et seq., supra.

            This chapter will concentrate on creating a disposition by entry of a plea or by submission of the cause to the court for court trial based on agreed facts or documents, see § 6.34, infra, and does not discuss assessment or creation of a record of conviction following jury trial.[2]

[1] On rare occasions, no special negotiation is required.  For example, if the sole count charged against the defendant is a safe haven, or is a divisible offense, it may be possible to enter a guilty plea as charged without creating a ground of deportation.

[2] See, e.g., Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004).