Post-Conviction Relief for Immigrants

(E)  Analyzing Immigration-Related Grounds.  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.[61]  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.[62]  The same would hold true of this argument.  Finally, 21 states at last count have statutes that require the court taking a plea to inform the defendant of the possible immigration consequences.  Where a conviction is invalidated on the basis of a violation of such a statute, it is likewise legally invalid at the time of the plea — since that is when the statute was violated.  This ground also therefore qualifies under Pickering to eliminate the immigration consequences of the conviction. The Seventh Circuit has held the subjective intent of the state court judge to be irrelevant, so long as a vacatur is granted on a ground of legal invalidity.[63]

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

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

[63] Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).