(A)  Affirmative Misadvice.  The strongest ineffective-counsel argument is that counsel affirmatively misadvised the defendant of the exact immigration consequences, for example, telling him or her only that s/he “might” be deported, whereas in reality, the drastic consequence of deportation is mandatory once the plea is entered to an aggravated felony offense.

 

The prevailing federal rule is that counsel’s misadvice can constitute ineffective assistance of counsel.[103]  This is often the rule at the state level as well.[104] However, it is difficult in most cases actually to show that an attorney in fact gave affirmative misadvice to the client, without the cooperation of the original attorney in giving a declaration, as this misadvice often occurs off the record.

 

Once an attorney gives advice regarding immigration consequences, the information provided must be accurate.  Some courts have rejected the idea that a failure to advise the client concerning the exact immigration consequences of a conviction can constitute ineffective assistance.  See § 6.8(B), infra.

 

Some courts have gone so far as to hold that where a noncitizen has been convicted of an aggravated felony, mandating deportation, the fact that counsel told his client that the conviction may result in deportation is in itself affirmative misadvice, since deportation is effectively mandatory.[105]  Couto did not reach the issue, but discussed it.[106]  The First, Sixth, and Ninth Circuits have declined to reconsider their prior holdings on this point.[107]

 

[103] United States v. Couto, 311 F.3d 179 (2d Cir. 2002) (defense counsel gave affirmative misadvice by saying that a conviction would not trigger deportation, where in fact it was an aggravated felony triggering mandatory deportation); see also Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Holmes v. United States, 876 F.2d 1545 (11th Cir. 1989); Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995), overruled on other grounds, O’Dell v. Netherland, 95 F.3d 1214, 1222-23 (4th Cir. 1996); Bowers v. Saffle, 216 F.3d 918, 925-26 (10th Cir. 2000); Goodall v. United States, 759 A.2d 1077, 1082 (D.C. App. 2000); Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1999), cert. denied, 497 U.S. 1011 (1999).

[104] See, e.g., Rollins v. State, 591 S.E.2d 796 (Ga. Jan. 12, 2004); Crabbe v. State, 248 Ga.App. 314, 315-16, 546 S.E.2d 65 (2001).

[105] Vega-Gonzalez v. State, 191 Or. App. 587 (2004); but see State v. Rojas-Martinez, 125 P.3d 930 (Utah Nov. 22, 2005).

[106] United States v. Couto, 311 F.3d at 188-192 (finding such arguments persuasive).

[107] See El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002), cert. denied, 537 U.S. 1024, 123 S.Ct. 535 (Nov. 12, 2002); United States v. Amador-Leal, 276 F.3d 511, 516-17 (9th Cir. 2002), cert. denied, 122 S.Ct. 1946 (2002); United States v. Gonzalez, 202 F.3d 20, 28 (1st Cir. 2000).

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