A number of grounds of legal invalidity do have some relationship to the immigration consequences of the conviction, but are effective nonetheless in eliminating those consequences provided the requirements of Pickering are met.  For example, the prevailing federal rule, which must perforce apply as well in all state courts, holds that a conviction is legally invalid at the time it came into existence if it results from ineffective assistance of counsel in giving affirmative misadvice concerning the immigration consequences of the plea, so long as the error is prejudicial.[95]  This ground of invalidity therefore meets the Pickering test, and is sufficient to erase the immigration consequences of a conviction.  Some states go even further, and hold that ineffective counsel includes a failure to advise concerning the immigration consequences.[96]  The same would hold true of this argument.  California also recognizes a failure to defend ground of ineffective assistance, for example, where counsel pleads the client to possession for sale of a controlled substance (an aggravated felony), instead of the greater offense of offer to transport (neither an aggravated felony nor a controlled-substances conviction in the Ninth Circuit).[97]

 

In Matter of Adamiak,[98] the Board of Immigration Appeals held that a conviction which had been vacated under Ohio post-conviction procedure,[99] on the ground that the trial court failed to advise the defendant of the possible immigration consequences of a guilty plea, as required by a state advisal statute, is no longer a valid conviction for immigration purposes.  Since a conviction vacated on a ground of legal invalidity created by state statute no longer exists to trigger immigration consequences, a fortiori, a conviction vacated as unconstitutional has also been eliminated for this purpose if it was vacated on a ground such as defense counsel violated a duty to give the client accurate advice or to try to defend the client against the adverse criminal or immigration consequences of a plea, or on the basis that the plea is involuntary because of inaccurate immigration advice.

 

The right to counsel, secured by the Sixth and Fourteenth Amendments to the United States Constitution and parallel provisions of state constitutions, includes the guarantee that the defendant will receive effective representation.[100] “[I]f the quality of counsel’s advice falls below a certain minimum level, the client’s guilty plea cannot be knowing and voluntary because it will not represent an informed choice.  And a lawyer who is not familiar with the facts and law relevant to his client’s case cannot meet that required minimal level.”[101]  Generally, a defendant must show that, but for counsel’s error, there would have been a different outcome in the case, or the defendant would not have entered a plea of guilty to the charge at issue.[102]

[95] See In re Resendiz, 25 Cal.4th 230 (2001) (reviewing federal authorities on this point, and applying them in a state case).

[96] People v. Soriano, 194 Cal.App. 3d 1470 (1987).

[97] People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (2004).

[98] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[99] Ohio Revised Code §   2943.031.

[100] Powell v. Alabama, 287 U.S. 45, 71 (1932); People v. Pope, 23 Cal.3d 412, 422 (1979).

[101] Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974).

[102] Hill v. Lockhart, 474 U.S. 52, 59 (1985); O’Tuel v. Osborne, 706 F.2d 498, 501 (4th Cir. 1983); Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979).

Sixth Circuit

POST CON RELIEF - EFFECTIVE ORDER - CONVICTION VACATED FOR IMMIGRATION REASONS STILL EXISTS
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) ("We hold that the present case is distinguishable from Pickering on the ground that, unlike the petitioner in Pickering, petitioner Sanusi did not raise or argue any colorable legal basis for the vacation of his conviction[, since] it is well settled that there is no obligation to advise a criminal defendant of the collateral immigration consequences of entering a guilty plea."), citing El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002).

POST CON RELIEF - EFFECTIVE VACATUR - PICKERING
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) (although a petitioners immigration motive for seeking post-conviction relief is not sufficient by itself to hold vacatur ineffective for immigration purposes, there must be some demonstrable legal basis for the vacatur; defendants "state court petition and the uncontested order of the Arkansas court with the docket entry--On 8-11-03, Milton Dejesus, attorney for defendant, filed a petition for writ of coram nobis. City Attorney had no objection. Judge granted the motion.--fail to provide the evidence from which it may be reasonably inferred that the writ of coram nobis was granted on any recognized legal ground. On this record, the only reasonable inference that can be drawn is that the conviction was vacated for the sole purpose of relieving Sanusi from deportation.").

http://bibdaily.com/pdfs/Mohamed%208-18-06.pdf

"In Morgan, the Supreme Court upheld the availability of coram vobis to a defendant who had not been provided counsel, but who had served his entire sentence. Morgan, 346 U.S. at 512. The Court noted that, with no other remedy being then available and sound reasons for the failure to seek earlier relief, the petitioner was entitled to seek a writ of coram vobis, for "[o]therwise a wrong may stand uncorrected which the available remedy would right." Id. In this case, the wrong suffered by Mohamed cannot stand uncorrected. A defendant's Sixth Amendment rights must be protected, and in this case, the result was that both Mohamed and the Court were unaware of the immigration consequences that would follow from his sentence. Therefore, pursuant to a writ of coram vobis, the Court will amend Mohamed's sentence from a term of two years to a term of three hundred and sixty days, with all time suspended."

Commonwealth v. Mohamed, Aug. 18, 2006.

Case No. (Criminal) 06-1059

CIRCUIT COURT OF ARLINGTON COUNTY, VIRGINIA

71 Va. Cir. 383

2006 Va. Cir. LEXIS 244