Aggravated Felonies

(C)  Ineffective Assistance of Counsel for Failure to Investigate Immigration Consequences.  Counsel’s failure to advise the client of the immigration consequences of a plea generally does not invalidate the conviction on the ground that due process was violated because of ineffective assistance of counsel,[140] except in California, where such claims are recognized.[141]  Affirmative misadvice by defense counsel concerning immigration consequences, however, constitutes a federal constitutional ground to set aside a conviction.[142]

[140] United States v. Fry, 322 F.3d 1198 (9th Cir. Mar. 18, 2003) (defense counsel’s failure to advise a defendant of collateral immigration consequences of criminal conviction does not violate the Sixth Amendment right to effective assistance of counsel.  This case does not undercut the argument that counsel’s mistaken advice, rather than a mere failure to advice, can constitute ineffective assistance of counsel.  See In re Resendiz, 25 Cal.4th 230 (2001) (citing federal authorities); United States v. Banda, 1 F.3d 354 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357 (10th Cir. 1992); United States v. Del Rosario, 902 F.2d 55 (D.C. Cir. 1990); United States v. George, 869 F.2d 333 (7th Cir. 1989); United States v. Yearwood, 863 F.2d 6 (4th Cir. 1988); but see United States v. Mora-Gomez, 875 F.Supp. 1208 (E.D. Va. 1995) (counsel’s misstatement of deportation consequences of plea may constitute ineffective assistance of counsel invalidating the conviction).  See also Steven D. Heller, Criminal Convictions and Aliens: Preventing the “Collateral Consequence” of Deportation, 94-10 Immigration Briefings (Oct. 1994); Lory Rosenberg & Kenneth H. Stern, Ineffective Assistance of Counsel: An Antidote for the Convicted Alien, 65 Interpreter Releases 529 (May 23, 1988).  See generally Gordon § 4.01[4].

[141] In re Resendiz, 25 Cal.4th 230 (2001) (rejecting the collateral consequences argument and holding that counsel renders ineffective assistance by affirmatively misadvising the defendant of the immigration effects of a plea).

[142] See N. Tooby, Post-Conviction Relief for Immigrants § 6.18 (2004).