Post-Conviction Relief for Immigrants

Under the federal Constitution, defense counsel should be considered to render IAC where s/he fails to research and protect the defendant against the immigration consequences of a plea.  Under California law, accurate immigration advice from counsel concerning the actual (not merely potential) immigration consequences is compulsory.  This requirement was first established in 1987 by People v. Soriano.[149]  It was recently reaffirmed by the California Supreme Court in In re Resendiz,[150] which rejected the argument that the “collateral” nature of the immigration consequences foreclosed any duty on the part of trial counsel to investigate and defend against the immigration effects.  While the “collateral consequences” doctrine is the prevailing rule in federal court,[151] California imposes an affirmative obligation on counsel to defend against the immigration consequences of a conviction.  As seen below, this requires counsel not only to investigate and research the immigration effects, but also to take affirmative action to defend against them.  In light of this clear duty, trial counsel’s failures in this regard are a fertile source of error that frequently give rise to grounds to vacate the conviction.

This should be the federal constitutional rule as well, applicable in all U.S. jurisdictions, as the following analysis shows.

            Counsel’s failure to seek a judicial recommendation against deportation, prior to November 29, 1990, has been held to be ineffective assistance of counsel.  See § 8.30, infra.

[149] People v. Soriano, 194 Cal.App. 3d 1470, 240 Cal.Rptr. 328 (1987).

[150] In re Resendiz, 25 Cal.4th 230 (2001).

[151] See § 6.20, below for a comprehensive argument as to why the “collateral consequences” doctrine has been erroneously applied to define the scope of counsel’s duties towards his or her client.