Post-Conviction Relief for Immigrants

(C)  What should counsel have done?  When demonstrating what counsel should have done, be very specific.  A general warning that the client would be deported is not sufficient:  Would the client be permanently inadmissible and never able to obtain lawful status?  Would the client become ineligible for a form of relief that was presently or potentially available?

            The only way adequate advice concerning the immigration consequences can be given is by first determining the client’s specific immigration status, and then analyzing the exact adverse immigration consequences of each of the potential dispositions of the case.  See § 5.4, supra.  Erroneous advice, given in ignorance of the actual situation, that the client will in fact be deported, when this is not the case, can be devastating to the client.  For example, if the client is eligible for discretionary relief in immigration court, but is not told this, and is instead mistakenly told there is a 100 percent chance the client will be deported if this plea is taken, the client might fail to hire immigration counsel and seek relief from deportation in immigration court on the basis of the false advice it would be hopeless to do so.