(B)  Failure to Advise.  In People v. Soriano,[108] a California court held that counsel has an affirmative duty, when counsel is aware that the client is a noncitizen, to investigate and advise the defendant of the exact immigration consequences of a plea prior to its entry.  Some other states also follow this rule.[109] There is less than unanimity on the subject, however.[110] At least 19 states and the ABA now require counsel to inform a noncitizen of the immigration perils prior to entry of plea.[111] Florida now requires such advice by court rule.[112] 

 

This rule, at least under Soriano, creates both a duty for counsel to advise the defendant of the possible immigration consequences of a conviction, and a duty to engage actually in an investigation of what those consequences could be.  Counsel must, after discovering that the client is a noncitizen, analyze the charges being brought against the defendant to determine whether a conviction under those charges will result in deportation or inadmissibility.  Counsel also has a duty to determine whether the client would be eligible for some form of relief in immigration court following a plea to the charge.  Counsel must then inform the client of the results of this investigation, and give his or her client accurate advice on how to plead in light of the possible immigration consequences.  In addition, since many defendants (over 20% in many states, such as California) are noncitizens, who will suffer terrible immigration consequences unless warned, defense counsel has a duty to inquire of each defendant as to his or her immigration status so as to identify the one in five for whom this is a paramount issue. 

 

As a greater duty is placed upon counsel in jurisdictions that follow a Soriano-type rule than where only affirmative misadvice results in ineffective assistance, ineffective assistance can be found much more often.  In many cases, defense counsel fails to make the effort to investigate the immigration consequences of a conviction.  Unfortunately, just as with an affirmative misadvice claim, it is often necessary to try to convince the court that something happened off the record.  A defendant’s declaration alone may not be sufficient, and it is always wise to corroborate the defendant as much as possible by independent sources of evidence.  If possible, an attempt should be made to obtain a declaration from the original trial counsel stating that s/he did not investigate the immigration consequences of the conviction.

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

[109] See People v. Pozo, 746 P.2d 523, 527-529 (Colo. 1987), and authorities cited therein; Lyons v. Pearce, 694 P.2d 969, 976-978 (1985); Daley v. State, 487 A.2d 320 (Md. 1985).

[110] See People v. Kadadu, 425 N.W.2d 784, 785-787 (Mich. 1988) (arraying split of authority).  See, e.g., State v. Ginebra, 511 So.2d 960  (Fla. 1987); People v. Huante, 571 N.E. 2d 736, 741-2 (Ill. 1991).

[111] See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001); D. Kesselbrener & L. Rosenberg, Immigration Law and Crimes, Appendix B (2004); People v. Pozo, supra, 746 P.2d at 526 n.4.

[112] Florida Rules of Criminal Procedure, Rule 3.172(c)(viii) (In re Amendments to Florida Rules, 536 So.2d 992, 994).  See Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Waiver of Jury Trial, 103 A.L.R. Fed. 867; Annot., Ineffective Assistance of Counsel: Failure to Seek Judicial Recommendation Against Deportation . . . ., 94 A.L.R. Fed. 868.

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