A number of states have enacted legislation protecting immigrants from entering guilty pleas in criminal cases in ignorance of the potential adverse immigration consequences.[223]  It may be possible, as in California, to ground a motion on the specific statute violated, or it may be necessary to raise this ground in a motion to withdraw the plea, motion to vacate, or other appropriate form of post-conviction relief.

 

The court’s failure to deliver the required advice may require the court to vacate the conviction.[224]  Even if the court gives the correct advice required by statute, if the state court judge goes further and adds incorrect information, that may constitute a ground on which the conviction must be vacated.[225]  This ground — violation of a state statute requiring the court to advise the defendant concerning the potential immigration consequences prior to acceptance of a plea — must be distinguished from the judicially created requirement that defense counsel must correctly advise the defendant concerning the actual immigration consequences prior to plea.[226]

Different statutes dictate different advisals, but they generally contain some warning identical or similar to the following:

 

If you are not a citizen of the United States, you are advised that a plea of guilty, a plea of nolo contendere or a plea of no contest for the offense for which you are charged may result in deportation, the exclusion from admission to the U.S., or the denial of naturalization under federal law.[227]

 

Even where no state advisal statute requires the court to give an immigration warning prior to plea, some states’ courts have recognized the duty of defense counsel to advise non-citizen defendants concerning the possible or actual adverse immigration consequences of criminal convictions.[228]  The ABA Standards of Criminal Justice require defense counsel to inform defendants concerning the collateral consequences of pleas, including the immigration consequences. 

 

Defendants have generally — in the absence of a statute — been unable to vacate convictions on the ground that the court failed to warn them of their possible or actual adverse immigration consequences.  The courts have reasoned that the immigration consequences are considered collateral consequences of a guilty plea, and the traditional rule has been that a court is under no duty to warn a non-citizen of collateral consequences.   A number of federal courts, for example, have declined to vacate convictions based on a claim that the court failed to advise the defendant concerning the adverse immigration consequences of a guilty plea.

 

A growing number of states, however, have enacted statutes for the purpose of protecting non-citizens from entering guilty pleas in criminal cases without being first informed their adverse immigration consequences.  Because of the drastic adverse immigration consequences that often flow from entry of a guilty plea, this legislation requires the trial court, prior to accepting a guilty plea, to notify defendants of the possible adverse immigration consequences.  The following states have such statutes or court rules: California, Connecticut, the District of Columbia, Florida, Georgia, Hawaii, Maryland, Massachusetts, Minnesota, Montana, New Mexico, North Carolina, Ohio, Oregon, Rhode Island, Texas, Washington, and Wisconsin.[229]  New York has weaker protections.[230]

 

In these jurisdictions, the trial court’s failure to advise the defendant of the possible adverse immigration consequences of a plea, in violation of these statutory notification provisions, may require vacation of the criminal judgment.

[223] E.g., California Penal Code § 1016.5 (the conviction must be vacated unless the court informs the defendant, prior to plea, of the possibility of deportation, exclusion, or denial of naturalization).  Florida now requires such advice by court rule.  Florida Rules of Criminal Procedure, Rule 3.172(c)(viii); In re Amendments to Florida Rules, 536 So.2d 992, 994.

[224] See, e.g., Cal. Penal Code § 1016.5(b); Wis. Stat. § 971.08(2); D.C. Code § 16-713; Ohio Rev. Code Ann. § 2943.031(d); Hawaii Stat. Ann. Code § 802E-3; Mass. Gen. L. Ch. 278, § 29D; Ex Parte Cervantes, 762 S.W.2d 577 (Tex. Cr. App. 1988).

[225] See Daramy v. United States, 750 A.2d 552 (App. D.C. 2000); Commonwealth v. Hilaire, 51 Mass. App. 818, 752 N.E.2d 737 (2001), aff'd, 437 Mass. 809, 777 N.E.2d 804 (2002).

[226] See In re Resendiz, 25 Cal.4th 230 (2001); People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987); People v. Pozo, 746 P.2d 523, 527-9 (Colo. 1987); Lyons v. Pearce, 298 Or. 554, 694 P.2d 969, 976-8 (1985); Daily v. State, 61 Md.App. 486, 487 A.2d 320 (1985).

[227] Cal. Penal Code § 1016.5 (West 1995); Conn. Gen. Stat. Ann. § 54-1j (West 1994); D.C. Code Ann. § 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. § 17-7-93 (1997); Haw. Rev. Stat. § 802E-2 (West 1994); 725 ILCS 5/113-8 (effective 1/1/2004); Mass. Gen. Laws Ann. ch. 278, § 29D (West 1994); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. § 46-12-210(1)(f) (1997); Neb. Rev. St. § 29-1819.02 (West 2003), N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law § 220.50(7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. § 15A-1022(a)(7) (West 1994); Ohio Rev. Code Ann. § 2943.031(A) (Anderson 1993); Ore. Rev. Stat. § 135.385(2)(d) (1997); R.I. Gen. Laws § 12-12-22 (West 2003), Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); Wash. Rev. Code Ann. § 10.40.200 (West 1995); Wis. Stat. Ann. § 971.08(1)(c) (West 1994); see generally Immigration Law & Crimes, App. B, State Notification Statutes (West Group 2003).

[228] See, e.g., Williams v. State, 641 N.E.2d 44 (Ind. App. 1994) (“attorney’s duties to a client are [not] limited by a bright line between the direct consequences of a guilty plea and those consequences considered collateral”); People v. Soriano, 194 Cal.App. 3d 1470, 240 Cal.Rptr. 328 (1987) (citing ABA standards as evidence of defense counsel’s obligation to advise clients fully about collateral immigration consequences of their guilty pleas); People v. Pozo, 746 P.2d 523 (Colo. 1987) (“attorneys must inform themselves of material legal principles that may significantly impact the particular circumstances of their clients”); Segura v. State, 749 N.E.2d 496 (Ind. 2001).

[229] Cal. Penal Code § 1016.5 (1982); Conn. Gen. Stat. § 54-1j (West 1994 & Supp. 1999); D.C. Code Ann. § 16-713 (1997); Fla. R. Crim. P. 3.172(c)(viii) (1989); O.C.Ga. Ann. § 17-7-93 (2000); H.R.S. § 802E; Md. Rule 4-242(e)(1999); Mass. Gen. Laws Ann. Ch. 278, § 29D (1992 & Supp. 1999); Minn. R. Crim. Proc. 15.01(10d), 15.02(2) (1999); Mont. Code Ann. 46-12-210; N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1990); Ohio Rev. Code Ann. § 2943.031 (Banks-Baldwin 1997); Or. Rev. Stat. § 135.385 (1982); R.I. Gen. Laws § 12-12-22; Tex. Crim. P. Code Ann. § 26.13(a)(4) (West 1989); Wash. Rev. Code Ann. § 10.40.200 (West 1990); Wis. Stat. § 971.08.

[230] New York has a statutory provision requiring notice to noncitizens at the time of entry of a guilty plea; however, the statute explicitly states that “failure to advise the defendant . . . shall not be deemed to affect the voluntariness of the guilty plea or the validity of the conviction . . . .” N.Y. Crim. Proc. Law § 220.50(7) (McKinney Supp. 1999).

Lower Courts of Fifth Circuit

POST CON RELIEF - TEXAS - STATE ADVISAL STATUTE
Hwang v. State, 2004 WL 585000 (Tex.App. March 25, 2004) (trial court erred by not informing appellant that guilty plea could result deportation, as required under Texas Code of Criminal Procedure article 26.13).

Other

GROUNDS - VIENNA CONVENTION
Article 36 of the Vienna Convention on Consular Relations (21 U.S.T. 77, TIAS 6820), can be used to attempt to suppress a confession, or vacate a guilty plea, in a criminal or immigration case, in light of the LaGrand and Avena decisions.  LaGrand Case (Germany v. U.S.), 2001 I.C.J. 104 (June 27) available at http://www.icjcij.org/icjwww/idocket/igus/igusframe.htm; Avena and Other Mexican Nationals (Mexico v. United States of America), 2003 I.C.J. 128, http:www.icjcji.org/icjwww/ipresscom/ipress2003/ipress2003-45--mus-- 20031223.htm (as visited February 5, 2004). Madej v. Schomig, 223 F.Supp.2d 968 (N.D. Ill. 2002), recognizes the impact of LaGrand: "After LaGrand, however, no court can credibly hold that the Vienna Convention does not create individually enforceable rights. The International Court of Justice was quite clear on that point, announcing that 'Article 36, paragraph 1, creates individual rights.' LaGrand Case, 2001 I.C.J. 104, at P 77." The impact of Avena can be seen by what happened in the capitol case, Torres v. Mullin, 124 S.Ct. 562 (2003), in which the defendant received a stay, a parole recommendation for clemency, and a commutation, based on Avena and the VCCR. Many police departments have incorporated the Vienna Convention's requirement that the arresting officer inform a noncitizen arrestee of his right to contact his consulate, so counsel may have the argument that the officer violated his duties imposed upon him by his own training manual or department regulations as well as the Vienna Convention.

POST CON RELIEF - STATE ADVISAL STATUTE - MASSACHUSETTS M.G.L. c. 278 sec. 29D: 29D.
Conviction upon plea of guilty, nolo contendere or an admission to sufficient facts; motion to vacate      The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States.      If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization. CREDIT(S) Added by St.1978, c. 383. Amended by St.1996, c. 450, 254; St.2004, c. 225, 1, eff. Oct. 27, 2004.

POST CON RELIEF - NEW MEXICO - STATE REHABILITATIVE RELIEF
See New Mexico Statutes, Annotated 31-20-13 (1978).

POST CON RELIEF - STATE ADVISAL STATUTE - IOWA
Iowa Rule of Criminal Procedure 2.8(2)(b) provides in relevant part:
     Before accepting a plea of guilty, the court must address the defendant
personally in open court and inform the defendant of, and determine that the
defendant understands, the following:
     . . .
     (3) That a criminal conviction, deferred judgment,  [*5]  or deferred
sentence may affect a defendant's status under federal immigration laws.