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The Champion

April 2018 , Page 54 

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Won’t My Client Just Be Deported Anyway? What Appellate Counsel Can Do for the Noncitizen Client

By Ryan Muennich

Prevailing norms of practice have long required counsel to consider immigration consequences, and in 2010 the Supreme Court held that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.”1 The Court acknowledged that “deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”2 Counsel can “plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation” when potential immigration consequences are recognized.3 

Unfortunately, a prosecutor may refuse to plea bargain creatively, or trial counsel may not recognize or understand possible immigration consequences. When that happens, appellate counsel can become a noncitizen’s last, best chance to avoid deportation and remain in the United States. Several aspects of a criminal appeal as of right offer

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