Post-Conviction Relief for Immigrants

Both federal and some state courts (other than in California) have found that the “collateral consequences” doctrine operates to limit counsel’s duties to defend against the immigration consequences of the conviction.[190]    These courts confuse the right to competent advice from counsel (which can and should include “collateral consequences”) with the lack of any right to advice from the court concerning them (since the court need not do so under Federal Rule of Criminal Procedure 11).

The California Supreme Court, however, resoundingly rejected this illogical argument in Resendiz.  The Ninth Circuit has never squarely decided this misadvice issue in.  The closest it has come was many years ago, when it held that the trial court need not advise the defendant of the immigration consequences before accepting a guilty plea.[191]  Thus, the scope of counsel’s duties in federal court with respect to the immigration consequences is still an open question in the Ninth Circuit that should be vigorously litigated by post-conviction counsel, at least as to misadvice of counsel.

The defective reasoning of the so-called “collateral consequences” argument is that because the immigration effects do not directly flow from the conviction, they are properly considered collateral, and counsel need not take them into account.  Cited in support is case law holding that the trial court need not advise the defendant of the collateral consequences of the conviction, including its immigration effects, before taking a valid guilty plea.

The obvious problem with this reasoning is that it equates the trial court’s duties with that of trial counsel.  This is a superficial analysis of the important question of defending against the immigration consequences.  The analysis leaps to the wrong conclusion that because the court need not do so, counsel need not do so.[192]  Nowhere else in criminal law are counsel’s duties confused with those of the court, or limited to what the court’s duties are toward the defendant.

The absurdity of holding defense counsel’s duty to advise the defendant to be as limited as the court’s duty is easily appreciated by considering a motion to suppress evidence.  Surely, there is no dispute that counsel must investigate the facts concerning a potential motion to suppress evidence, and research the law concerning it, under the client’s particular circumstances.  But the court has no such duties.

Some state courts have understandably followed the flawed federal reasoning: 

We observe that the circumstances of the instant case are distinguishable from situations in which a defendant has been offered affirmative misadvice or misstatements regarding the immigration consequences of a guilty plea.  Federal and state courts have recognized that counsel’s affirmative misadvice or misstatements regarding deportation or other collateral consequences of a plea may, under certain circumstances, constitute ineffective assistance of counsel. See, e.g., In re Resendiz, 25 Cal.4th 230, 19 P.3d 1171, 105 Cal.Rptr.2d 431 (2001); People v. McDonald, 296 A.D.2d 13, 745 N.Y.S.2d 276 (2002)(citing cases).  Zarate has not made such an allegation in the present case.[193]

[190] United States v. Fry, 322 F.3d 1198 (9th Cir. Mar 18, 2003)(failure of trial counsel to advise defendant concerning potential deportation consequences of conviction did not constitute ineffective assistance of counsel); United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); accord, United States v. Gonzalez, 202 F.3d 20, 25 (1st Cir. 2000); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992), cert. denied, 507 U.S. 1039, 113 S.Ct. 1869, 123 L.Ed.2d 489 (1993); United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir. 1990), cert. denied, 498 U.S. 942, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990)(failure of counsel to advise client of immigration consequences prior to plea does not constitute ineffective counsel); Santos v. Kolb, 880 F.2d 941, 945 (7th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764, 769 (11th Cir. 1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975)(per curiam); United States v. Sanchez-Guzman, 744 F.Supp. 997, 1001 (E.D. Wash. 1990).  See also Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Guilty Plea — Federal Cases, 90 A.L.R. Fed. 748.

[191] Fruchtman v. Kenton, 531 F.2d 946, 948 (9th Cir. 1976) (court need not inform defendant of immigration consequences in plea colloquy); see Steinsvik v. Vinzant, 640 F.2d 949 (9th Cir. 1981) (same).

[192] See also United States v. Sanchez‑Guzman, 744 F.Supp. 997, 1001 (E.D. Wash. 1990); Santos v. Kolb, 880 F.2d 941, 944 (7th Cir. 1989), cert. denied, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990); Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Guilty Plea - Federal Cases, 90 A.L.R. Fed. 748;  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.

[193] State v. Zarate, 264 Neb. 690, 698-699, 651 N.W.2d 215 (2002).