Plea Deals Have to Consider the Defendant Immigration Status

In the past, the list of criminal offenses that resulted in deportation as a consequence of the conviction was rather short, and judges had more sentencing discretion. Over the years, however, this list of offenses has grown to include even minor offenses, and judges now have less sentencing discretion than they did in the past. This has all contributed to more deportations and permanent bans from the United States.

A new law effective on Jan 1, 2016 puts additional responsibilities on defense counsel and prosecution. California has more immigrants than any other state, and the impact of a criminal offense is enormous. One out of four people living in CA is foreign born. One out of every two children born in CA has an immigrant parent. Once a person is deported due to a criminal conviction, it is very unlikely that he or she will ever be allowed back in to the country.

Under Penal Code Section 1016.3 (a), defense counsel is required to provide accurate advice to a client regarding the possible immigration consequences of accepting a plea bargain. With the client’s consent, defense counsel is further required to defend against any consequences to immigration status.

Penal Code Section 1016.3(b) now requires the prosecution to consider in the interest of justice the immigration consequences of a defendant when offering a plea bargain. While this law does not require prosecutors to make a plea bargain, it mandates consideration of immigration consequences. Those who are opposed to the new law believe that U.S. citizens who commit the same crimes will be punished more harshly because immigration consequences are not a factor to consider.