Immigration Expert for California Criminal Charges
Attorney Scott Mossman consults with criminal defense counsel to minimize the immigration consequences of criminal charges. He has developed expertise in the field by working in it on a weekly basis. Scott has served as immigration counsel to a large San Francisco Bay Area criminal defense firm since 2009 and he also works with several other prominent defense lawyers. Additionally, he has had success partnering with public defenders, both as a contract consultant for the Napa County Public Defender and where the defendant hires him directly.
Scott Mossman helps immigrant defendants and their defense attorneys by:
- Reviewing the defendant‘s immigration history and any prior convictions to determine the immigration options and priorities.
- Evaluating the District Attorney‘s plea offer and either (1) confirming that it is a good resolution for immigration purposes or (2) advising on alternatives that would improve the result.
- Writing an opinion letter to present to the District Attorney, if necessary, to justify an alternative plea.
- Drafting immigration-safe plea language.
- Answering questions and providing continuing support during the plea negotiations, including conference calls with the prosecutor where appropriate.
- Explaining the immigration consequences of a proposed deal to the defendant so that he or she can make an informed decision on whether to accept it or go to trial.
- Reviewing the court minutes, sentencing order, and any other documentation of the result in the case to ensure that the record accurately reflects the terms of the deal and protects the client.
Immigration and Criminal History Review
Scott Mossman‘s services always begin with a thorough review of the defendant‘s immigration and criminal history. Whether a particular conviction would be a crime involving moral turpitude, deportable domestic violence offense, etc., is almost meaningless without knowing a defendant‘s history. The history will determine which immigration consequences apply and whether they matter.
For example, negotiating to avoid a crime involving moral turpitude may not be the highest priority if the defendant already has two convictions for crimes involving moral turpitude. Instead, it may be more important to avoid jail custody to reduce the risk of apprehension by ICE.
Criminal defense counsel can collect the information needed to begin the assessment of their client‘s individual immigration priorities using our firm‘s PLEA ADVICE INTAKE FORM. Scott and his legal assistant (Spanish-speaking) will then obtain further information, if necessary, directly from the client or the client‘s family.
Evaluating the Plea Offer and Negotiating a Safer Deal
Once Scott understands the defendant‘s immigration priorities and options, he advises defense counsel on whether the prosecutor‘s plea offer will meet them. If not, he provides defense counsel with tools to negotiate for a resolution that is better for immigration purposes.
The primary tool to negotiate a better deal is an opinion letter, which defense counsel may decide to show to the prosecutor to justify a particular resolution in the case. The opinion letter will:
- Summarize the defendant‘s immigration circumstances and priorities, as well as state any favorable discretionary factors.
- Explain, with citations to legal authority, the harmful immigration consequences that would result if the defendant accepted the District Attorney‘s plea offer.
- Offer an alternative disposition that would minimize the immigration harm to defendant, which would include advice on any steps or language that would need to be used to obtain the maximum benefit from the proposal.
Scott understands that a counter-offer must be credible, so he will work together with defense counsel to come up with a disposition that:
- Is reasonable given the charges and the strength of the evidence. Most prosecutors insist that the criminal penalties for an immigrant defendant be roughly equivalent to what a citizen would receive (equivalent, not identical). Scott has extensive experience negotiating deals that satisfy this concern, while also helping immigrants avoid additional immigration penalties that a citizen would not experience.
- Plausibly relates to a factual basis that exists in the record, since prosecutors typically require that a conviction relate in some way to what the defendant supposedly did.
But what if the District Attorney will not agree to the recommendation in the opinion letter? Scott understands that, as with any negotiation between two parties, the first proposal may not be accepted. He will work with defense counsel to determine if there is another possible alternative. If so, Scott will provide another opinion letter to support that proposal.
Further, if the prosecutor has questions or doubts about the immigration consequences, Scott welcomes the opportunity to address those issues. He can do that in a conference call with the prosecutor and defense counsel. He has done this in some of his most difficult cases and has found that answering the District Attorney‘s questions directly can move the negotiations along.
Advising the Defendant of the Immigration Consequences
An important part of Scott Mossman‘s services when advising on criminal charges is to make sure the defendant personally understands the immigration consequences of a proposed deal. The California courts have long imposed the duty on criminal defense counsel to investigate and explain the specific immigration consequences of a plea. See People v. Soriano (1987) 194 Cal. App. 3d 1470, 1482. The U.S. Supreme Court later recognized this obligation in Padilla v. Kentucky (2010) 130 S. Ct. 1473, 1482-83. As Justice Alito‘s concurrence to Padilla points out, though, “nothing is ever simple with immigration law.”
Scott helps defense counsel meet their obligation—and to document it—by providing a written explanation of the immigration consequences for the proposed deal. Defense counsel should go over those consequences with the defendant before entering the guilty or no-contest plea, using a court interpreter if necessary.
Review of the Record of the Disposition
A deal is only as good as the record of it. The consequences of an error by the judge or clerk in recording the terms of the conviction or sentence can be disastrous. This is particularly true if the error is not discovered until ten years later when the immigrant is detained in removal proceedings and the court reporter has destroyed the transcript. To avoid this type of situation, Scott is always willing to confirm that the record of conviction (or other disposition) satisfies the immigration requirements. There is never any additional charge for this service. Scott will review the records upon receiving them from the defendant or criminal defense attorney.