(C)  Failure to Defend.  Most recently, a California court has held that counsel also has a duty to defend the noncitizen against a plea that would have adverse immigration consequences.[113]  Thus, if the investigation reveals that a conviction of a certain charge will cause the defendant to be an aggravated felon, causing an immigration disaster, counsel has a duty to assist his or her client in attempting to obtain an alternative disposition that would avoid these disastrous consequences. 

 

A common example would be where the defendant is convicted of a theft offense and is facing one year or more in custody.  This offense is both a crime involving moral turpitude and (with a one-year sentence imposed) an aggravated felony.  Under Bautista, counsel has a duty to try to obtain an alternative disposition that would at least not be an aggravated felony, and preferably not even a crime of moral turpitude.  A sentence of 364 days, rather than a year, would keep the theft offense from becoming an aggravated felony.[114]  Even better, however, would be a plea to burglary (entry into a building for the purpose of committing theft or any felony), with a sentence of 364 days or, preferably, 180 days or less.  If the defendant has been admitted to the United States, this plea will avoid deportation as a noncitizen convicted of a crime involving moral turpitude.[115]  If the defendant is an illegal entrant, or wants to travel outside the United States, the plea to misdemeanor burglary with a sentence imposed of 180 days or less will keep him or her from being inadmissible to the United States, as long as s/he has committed only one crime, because of the Petty Offense Exception.  A plea to simple trespass, if possible, would avoid any immigration consequences.

 

Part of making a Bautista-like claim is the need to demonstrate prejudice, i.e., that it is reasonably likely that the court and/or prosecution would have been willing to agree upon request to an alternative immigration-safe disposition.  Luckily, in most cases, there are immigration-safe alternative pleas that would result in the same level of punishment, or even greater punishment.  For example, while a conviction of simple battery of a spouse will have a number of adverse immigration consequences, a plea to a violation of California Penal Code § 136.1(b), dissuading a witness, which is a strike under California’s three strikes laws, should have no immigration effect.  In such cases, it is likely that the court and/or prosecution would have been willing to cooperate in arranging a plea to a more serious offense.

 

Another benefit to a Bautista claim is that the violation occurred in the open, rather than in a private attorney-client conversation.  Defense counsel should have attempted to negotiate the safe disposition openly with the prosecution, and should have argued for a safe sentence during the sentence hearing.  Therefore, it is far easier to prove this claim than a mere failure to advise, or affirmative misadvice, which occurs in a private attorney-client conference.  Counsel’s error will be clear from the plea and/or sentencing transcripts.

           

Although the failure to defend argument is mainly applicable in those jurisdictions that also follow the Soriano rule, this rule also applies even where the affirmative-misadvice standard is followed.  Even if counsel advised the defendant correctly of the exact immigration consequences of the disposition (e.g., that a sentence of 365 days would result in mandatory deportation), counsel also has the duty to attempt to avoid that result by arguing for a shorter sentence.

 

[113] People v. Bautista, 115 Cal.App.4th 229 (2004).

[114] See INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[115] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions, § 9.33 (2005).

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