More and more non-citizens convicted of crimes are being deported under strict new immigration laws, and this may require divorce, tax and criminal defense lawyers to change their strategies in many cases, experts tell Lawyers Weekly USA.

Divorce. A non-citizen can now be deported for domestic violence, child abuse or violating a protective order. This might be a reason not to bring such charges against an ex-spouse on whom a client depends for support.

Tax. An alien who commits tax evasion in which the loss to the government is more than $10,000 now faces mandatory permanent deportation. This may be something to warn clients about when doing "aggressive" tax planning.

Criminal. Deportation can often be avoided under the new laws by pleading guilty to a different offense or modifying the sentence imposed. Where such tactics won't work, there is an additional reason to go to trial.

The new immigration rules are extremely technical and complicated, and in many cases an attorney will need the help of a specialist.

In the past few weeks, the new laws have become an issue in drunk driving felony cases, because of a ruling by the Board of Immigration Appeals that a conviction in these cases triggers mandatory, permanent deportation. (See 98 LWUSA 745.)

But such deportation is also triggered by a wide range of other crimes -- some of them quite minor, such as the sale of a single marijuana "joint." In addition, many other crimes trigger discretionary deportation, and still others create problems such as the inability to get a "green card."

As a result of the new laws and more aggressive enforcement by the Immigration and Naturalization Service, the number of people deported based on their criminal convictions rose from 37,000 in 1996, when the new laws were enacted, to 50,000 in 1997. And the number is expected to go up substantially again in 1998.

This is "like a plague sweeping the country," says Tova Indritz of Albuquerque, N.M., a co-chair of the immigration committee of the National Association of Criminal Defense Lawyers.

About 25% of the time, the problem can be avoided if the criminal defense lawyer understands the immigration rules, says Linda Ramirez of Portland, Ore., a co-chair of Indritz's committee. And where it can't be avoided, defendants will want to go to trial a lot more often than they would otherwise, she says.

But defense lawyers frequently aren't aware that there's a potential immigration problem. "In about 60% of the cases, it's overlooked," says Ramirez.

This can cause the client to end up in a terrible situation that could have been avoided. "It happens all the time," says Tilman Hasche, an immigration attorney in Portland, Ore.

"What's at stake may be the only life the person knows," says Katherine Brady, an attorney at the Immigrant Legal Resource Center in San Francisco. "They may not even speak the language of the country they're deported to."

Here's a closer look at some of the ways in which lawyers representing non-citizens may need to change their strategy in light of the current laws:

• Criminal Cases

Mandatory, permanent deportation "is the most terrible of all immigration consequences," says Norton Tooby, a criminal defense and immigration attorney in Oakland, Calif.

Ira Kurzban of Miami, the author of a book on immigration law, calls it "the equivalent of a life sentence in immigration law," since the client can never return to the U.S. If caught returning illegally, the client faces up 20 years in prison.

Avoiding it "is the most important thing," says Kerry Bretz, an immigration attorney in New York.

A conviction results in this deportation if it meets the immigration law's definition of "aggravated felony."

However, this definition is very broad. While in the past it covered only a few crimes, such as murder and drug trafficking, it now covers dozens, including some that are misdemeanors under state law. The list includes:

• A "crime of violence" with a one-year prison sentence (which has been interpreted broadly to include drunk driving felonies, as well as mere possession of a sawed-off shotgun).
• Theft with a one-year prison sentence.
• A drug sale crime, including possession for sale.
• A second conviction for mere possession of drugs.
• Fraud or tax evasion where the loss to the victim or government exceeds $10,000.
• Perjury with a one-year sentence.
• Sexual abuse of a minor.

For purposes of the law, a sentence counts even if it's suspended. The list of covered crimes is at 8 U.S.C. Sect. 1101(a)(43).

One way to avoid conviction for an "aggravated felony" is to plead guilty to an offense that isn't covered. For example, instead of a drug sale, plead to simple possession.

Depending on the client's priorities, you may want to do that even if the drug possession offense is more serious under state law, and if the tradeoff is more jail time, says Bretz. "If keeping a green card is important, you sometimes have to plead up."

In some drug cases, you can plead to "accessory after the fact," which would not be a drug offense for immigration purposes, says Tooby.

Pleading to a particular subsection of a criminal statute can accomplish the same thing, says Dan Kesselbrenner, executive director of the National Immigration Project of the National Lawyers Guild in Boston.

For example, if the client is charged under a statute covering fraud and false statements, plead to the subsection on false statements, he says.

Another tactic is to keep out of the record of conviction any reference to things such as guns or drugs that might make the offense covered, says Bretz. In a fraud case, if the elements of the offense don't require a loss to the victim of $10,000 or more, avoid any admission in the record that the loss was that large.

Where a one-year sentence is necessary for a crime to be covered, then you want to keep the sentence under a year if possible.

One way is to "spread" the sentence over multiple counts for the same offense or different offenses. For example, if someone is charged with assault and robbery, you might get a sentence for each that is less than a year, rather than a longer sentence for either one, says Manuel Vargas, director of the Criminal Defense Immigration Project in New York.

Or if the sentence would be one year of imprisonment, you may negotiate for a reduction by one day -- to 364 days. This "can make a world of difference," says Vargas.

For example, 22-year-old Jose Luis Fernandez, who has lived in California as a lawful permanent resident since he was 12, is now in the process of being deported because he pleaded guilty to sexual battery -- a misdemeanor under California law, but a "crime of violence" under immigration law -- and sentenced to one year in a county jail. As a result, his crime is being treated as an aggravated felony, and he faces mandatory, permanent deportation.

The problem could have been avoided if his criminal defense attorney had gotten one day less of jail time, says his immigration attorney, Esther Martinez of Modesto, Calif.

This is a "classic case," and a malpractice claim against the defense attorney is possible, she says.

A number of other crimes, while not "aggravated felonies," can still cause a client to be deported. The difference is that in some cases an immigration judge may have discretion over whether to deport the client. Also, in some cases the client may be able to return to the U.S. after 10 years.

These crimes include a "crime of moral turpitude," which is not defined in the statute, but which courts have interpreted to include:

• Any theft or other crime where an intent to steal or defraud is an element (including petty larceny and "turnstile jumping").
• Crimes where bodily harm is caused or threatened by an intentional act, or where serious bodily harm is caused or threatened by a reckless act.
• Most sex crimes.

However, a single "crime of moral turpitude" is enough to trigger deportation only if (1) the client has been in the U.S. for only five years or less, and (2) the crime carries a maximum potential sentence of one year or more.

Otherwise, there must be two crimes of moral turpitude, which don't arise out of a "single scheme of criminal misconduct."

Apart from crimes of moral turpitude, deportation can also be triggered by crimes of domestic violence, which are defined as "crimes of violence" committed against a current or former spouse, someone with whom the client has had a child, or a boyfriend or girlfriend the client has lived with (or anyone else protected by state domestic violence laws).

It can also be triggered by a civil or criminal violation of a protective order preventing domestic violence.

And it can be triggered by:

• Any drug offense (except for simple possession of 30 grams or less of marijuana);
• or Any offense for which the use or sale of a firearm is an element.

If deportation is triggered by any of these things (and the crime wasn't an aggravated felony), there may be discretion by the immigration judge, but only if the client:

• Has been a lawful permanent resident for at least five years before committing the crime;
• Has lived in the U.S. for seven years before committing the crime;
• and Has not received discretionary relief from deportation in the past.

If these three requirements are met, then a waiver may be granted where, for example, there is evidence that the client has lived in the U.S. for a long time, has family here, has a good employment history or owns a business, goes to church, etc.

Again, you may want to plead to an offense not covered by the immigration laws, even if it means more jail time -- especially if the client hasn't been a lawful permanent resident for at least five years, or fails to meet another requirement for a waiver.

For example, if charged with unlawful possession of a gun, you might plead guilty to assault, says Kesselbrenner. "By pleading to a crime that doesn't include the use of a weapon as an element of the offense, you can keep the gun out of the record of conviction," he says. "Insulate from the record the fact that a gun was involved."

"If it's not in the record of conviction, it ain't there," says Hasche.

Or if charged with assault, you might plead to a subsection based on reckless conduct that wouldn't be a crime of moral turpitude, as long as "serious bodily injury" isn't an element of the offense, says Vargas.

In a domestic violence case, you may want to look for a statute to plead under that is not going to fall within the definition of domestic violence, such as assault or harassment, suggests Dick Ginsburg, an immigration attorney in Hillsboro, Ore.

Then try to keep out of the record any reference to the relationship between the client and the victim.

In a drug case, if it's a first offense, you may want to plead to an offense that is consistent with possession of 30 grams or less of marijuana.

Avoid 'Inadmissibility' On Other Grounds

There are also some crimes that just make a person "inadmissible." This is mostly a concern for clients who are not yet lawful permanent residents, because it would bar them from becoming one. In some cases, they might later get a waiver, but for most drug offenses they would be barred forever.

It's also a concern for permanent residents, because if they ever leave the country, such as for a vacation, it may prevent them from getting back in.

These crimes include:

• Any drug crime;
• A single "crime of moral turpitude," where the crime carries a maximum sentence of more than one year in prison, and the person was sentenced to more than six months in prison;
• and Conviction of two or more crimes of any type, with aggregate prison sentences of five years or more;
• and Prostitution.

Again, you want to avoid a drug offense, such as by pleading to "accessory after the fact," and by keeping references to drugs out of the record of conviction.

To avoid inadmissibility on the basis of a crime of moral turpitude, you may want to keep the prison sentence down to six months.

In many cases, the only way to avoid immigration problems will be to win at trial. And so it may be worthwhile to try a case you wouldn't try otherwise.

In addition, you may want to litigate an otherwise minor case more aggressively because there is more at stake. For instance, you might file motions you wouldn't file ordinarily, says Vargas.

There is also more reason to appeal a conviction in the case, says Franco Capriotti, an immigration attorney in Portland, Ore.

Another tactic that may work in drug cases in some states is to negotiate a court-ordered "diversion" to drug treatment, where the charges are dismissed after the client completes the treatment program.

However, under the new immigration laws, this won't avoid immigration consequences if the state requires a guilty plea before the "diversion." It should work, however, in states where no guilty plea is required, says Tooby.

In some cases, it may also help to tell the prosecutor about the problem, lawyers say.

"If it's a small crime that will trigger huge immigration consequences, the prosecutor may feel that this is disproportionate and will be sympathetic," says Tooby.

"If it's a friendly D.A. who just wants to do his job and doesn't want deportation, where the client has a wife and kids, often the D.A. will say, 'No, we didn't want that to be the penalty,'" says Capriotti.

A drawback, however, is that the prosecutor may tip off the INS.

"If the crime is serious, the prosecutor may say, 'I want him deported,'" says Tooby.

But in most cases the INS will find out anyway, says Patrick. "Not telling is a mistake," he maintains. By telling at the outset, "you can use it to your advantage and structure the arrangement so that the government gets its pound of flesh, but it's proportionate to the acts of the client."

• Divorce Cases

Divorce attorneys should take the new immigration laws into account when deciding whether to bring, or how to respond to, charges of domestic violence or violation of a protective order, lawyers say.

(The new law also covers child abuse, child neglect or abandonment, and stalking.)

Attorneys might view the threat of deportation as a weapon that adds to the seriousness of such charges.

But the client also needs to consider that if the spouse or ex-spouse is deported, the client may lose child support and alimony, says Lisae Jordan, a family lawyer in Baltimore, Md.

"If she's trying to get support and he's deported back to Mexico, good luck," says Hasche.

For the person facing such charges, of course, the immigration consequences and possible tactics to avoid them should be considered as in any criminal case.

"You'd better fight any allegation like that tooth and nail, because the consequences can be horrendous," says Hasche.

Clients should be warned that even a civil violation of a protective order can lead to deportation, says Vargas.

• Tax Cases

Tax lawyers also need to be aware of the new laws, says New York immigration attorney Michael Patrick, who spoke on the topic to tax lawyers at the annual ABA meeting in Toronto this summer.

Even if they don't do criminal tax work, they should be aware, because, "If you're advising the client about something that is potentially fraudulent, the client may have exposure for doing something or not doing something that might result in a negative impact on their immigration status," Patrick says.

"If the client is in deep water or something smells funny, the tax lawyer should get an outside opinion on what the consequences would be," he says.

The new provisions making tax evasion an "aggravated felony" if the loss to the government exceeds $10,000 would apply to most criminal tax cases, because smaller cases generally aren't prosecuted, says attorney Steven Harris of Miami, author of Tax Fraud and Evasion.

"Most [tax lawyers] are startled to find out that just about any kind of felony conviction is covered," says Harris. The provisions "are a big change and a big problem for any green card holder or any person not a citizen who is convicted of any tax felony."

The new laws are:

• The Antiterrorism and Effective Death Penalty Act, which went into effect on April 24, 1996. Pub. L. No. 104-132, 110 Stat. 1214.
• The Illegal Immigration Reform and Immigrant Responsibility Act, which generally went into effect on April 1, 1997. Pub. L. No. 104-208, 110 Stat. 3009.