Post-Conviction Relief for Immigrants

 

The Resendiz Court held that counsel renders ineffective assistance by affirmatively misadvising the defendant of the immigration effects of a plea.  In People v. Soriano,[152] the court held that in order to render effective assistance of counsel, defense counsel must investigate the particular immigration consequences to defendant of a plea and advise the client of those consequences prior to entry of the plea.  Both courts found that it is insufficient for counsel to rely on the general language of the state advisal statute that deportation, exclusion, and denial of naturalization may result.[153]  A number of other states are in agreement.[154]

 

            Thus, in order to prevail on a claim of ineffective assistance of counsel during plea bargaining, the client must show either that counsel gave affirmative misadvice or that defense counsel did not investigate and advise the client of the exact immigration consequences that would flow from the conviction.  Further, prejudice must be shown, i.e., a reasonable probability that the client would not have entered this plea if s/he had been told the truth.

 

The Resendiz Court recognized the federal rule that “deportation is a drastic measure and at times the equivalent of banishment or exile . . . . To banish [noncitizens] from home, family, and adopted country is punishment of the most drastic kind whether done at the time when they were convicted or later.”[155]  Because “criminal convictions may have ‘dire consequences’ under federal immigration law,” and “such consequences are ‘material matters’ for  noncitizen defendants faced with pleading decisions,” affirmative misadvice of a plea’s immigration effects can amount to deficient performance under prevailing professional norms.[156]

 

Mr. Resendiz pled guilty to possession for sale of cocaine and marijuana[157] and possession of a usable amount of methamphetamine,[158] which were considered by the INS to be controlled substance and aggravated felony convictions, requiring petitioner’s mandatory deportation.[159]  Prior to pleading guilty, petitioner told counsel he was concerned about keeping his green card, and counsel told him that if he pleaded guilty as charged, there would be “no problems with immigration” except that petitioner would not be able to naturalize and become a United States citizen.[160] 

 

This advice was wrong, because, as the court explained:

 

[S]uch advice would have been mistaken.  Controlled substance violations “are the most damning convictions in the Immigration and Nationality Act.  There are very few situations where a plea to a narcotics violation would not have a fatal and permanent immigration consequence” as an “alien convicted of a crime ‘relating to’ controlled substances is deportable and excludable.” 

 

Owing to the enactment of IIRAIRA and AEDPA in 1996, petitioner became subject to expedited removal from the United States upon pleading guilty to the charges against him, both because they involved controlled substances and because drug trafficking is considered an “aggravated felony.”  The only contingency on which institution of actual removal proceedings at that point hung was that they be instituted “upon the order of the [United States] Attorney General,” which indeed they were.[161] 

 

Ultimately, due to an evidentiary dispute, the court did not decide whether trial counsel misadvised petitioner as alleged.  The court instead found petitioner had not demonstrated prejudice.

 

In Soriano, supra, the defendant received a sentence of 365 days, and was deportable, while a sentence of 364 days would have avoided deportation.  Many cases will be almost identical, where a sentence of 365 days or more is imposed for one of the many types of crime that will then be considered an “aggravated felony” only if that sentence is imposed: common offenses such as any “crime of violence,” theft offense, burglary, receiving stolen property, perjury, obstruction of justice, and the like.[162]  These convictions would then constitute “aggravated felonies,” with the most terrible of all immigration consequences, only if the defendant received a sentence imposed of 365 days or more on that count.  A sentence of 364 days or less on any such conviction would avoid “aggravated felony” status, and enable the immigration court to consider granting discretionary relief from deportation if the defendant was otherwise qualified for “cancellation of removal.”[163]

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

[153] Resendiz, supra, 25 Cal.4th at 240-42; Soriano, 194 Cal.App.3d 1481-1482, 240 Cal.Rptr. at 336.

[154] People v. Pozo, 746 P.2d 523, 527‑529 (Colo. 1987), and authorities cited therein; Lyons v. Pearce, 298 Or. 554, 694 P.2d 969, 976‑978 (1985); see Daily v. State, 61 Md.App. 486, 487 A.2d 320 (1985).  There is less than unanimity on the subject.  See People v. Kadadu, 169 Mich.App. 278, 425 N.W.2d 784, 785‑787 (1988) (arraying split of authority).  See, e.g., State v. Ginebra, 511 So.2d 960  (Fla. 1987); People v. Huante, 571 N.E. 2d 736, 741‑2 (Ill. 1991).  At least 19 states and the ABA now require counsel to inform a noncitizen of the immigration perils prior to entry of plea.  INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001); see D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes, Appendix B (2001); People v. Pozo, supra, 746 P.2d at 526 n.4.  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].)  See Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Waiver of Jury Trial, 103 A.L.R. Fed. 867; Annot., Ineffective Assistance of Counsel: Failure to Seek Judicial Recommendation Against Deportation . . . ., 94 A.L.R. Fed. 868.

[155] Id. at 250 (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), and Lehmann v. Carson, 353 U.S. 685, 691 (1957) (conc. opn. of Black, J.)).

[156] Id. at 250 (quoting People v. Superior Court (Giron), 11 Cal.3d 793, 797-98 (1974)).

[157] California Health & Saf. Code, § § 11351, 11359.

[158] Id., § 11377(a).

[159] INA § § 237(a)(2)(B)(i); (a)(2)(A)(iii), 8 U.S.C. § § 1127(a)(2)(B)(i), (a)(2)(A)(iii).

[160] Resendiz, supra, 25 Cal.4th at 251.

[161] Id. at 251-52.

[162] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).  See § § 8.5-8.6, infra.

[163] INA § 240A(a), 8 U.S.C. § 1229b(a).