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).

Maureen Sweeney, Fact or Fiction: The Legal Construction of Immigration Removal for Crimes, 27 Yale J. on Reg. 47, 67 (2010) (collateral consequences doctrine should be rejected, since reality is that removal consequences now have "a definite, immediate and largely automatic effect on the range of the defendants punishment.", citing Cuthrell v. Director, 475 F.2d 1364 (4th Cir. 1973): "An analysis of the current landscape of immigration law and enforcement relating to convictions reveals that removal does, in fact, function as punishment, and, at least in the case of those convicted of aggravated felonies, has come to a point where it can very fairly be characterized as the definite, immediate, and automatic consequence of the criminal courts action.").

Sixth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FEDERAL RULE -- FAILURE TO ADVISE OF COLLATERAL IMMIGRATION CONSEQUENCES DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL
Federal courts consistently have held that deportation is a collateral consequence. For example, in El- Nobani v. United States, 287 F.3d 417, 419 (6th Cir. 2002), the petitioner claimed that his lack of awareness of the deportation consequences rendered his plea involuntary and unknowing. The United States Court of Appeals for the Sixth Circuit disagreed: "A defendant need only be aware of the direct consequences of the plea . . . . A collateral consequence is one that remains beyond the control and responsibility of the district court in which that conviction was entered. . . . It is clear that deportation is not within the control and responsibility of the district court, and hence, deportation is collateral to a conviction. . . . Thus, the fact that petitioner was unaware of the deportation consequences of his pleas does not make his pleas unknowing or involuntary." (Citations omitted; internal quotation marks omitted.) Id. at 421; see also United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003) ("we have held that deportation is a collateral, not direct, consequence of the criminal process"); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) ("we hold that potential deportation is a collateral consequence of a guilty plea"); United States v. Quin, 836 F.2d 654, 655 (1st Cir. 1988) (deportation generally regarded as collateral consequence); United States v. Campbell, 778 F.2d 764, 767 (11th Cir. 1985) ("deportation is a collateral consequence of a guilty plea"); United States v. Russell, 222 U.S. App. D.C. 313, 686 F.2d 35, 39 (D.C. Cir. 1982) (well settled that rule 11 of Federal Rules of Criminal Procedure does not require informing defendant of possibility of deportation); Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.) (deportation is collateral consequence), cert. denied, 429 U.S. 895, 97 S. Ct. 256, 50 L. Ed. 2d 178 (1976); Michel v. United States, 507 F.2d 461, 466 (2d Cir. 1974) (same).

Other

POST CON RELIEF - GROUNDS - INVOLUNTARY PLEA - COLLATERAL CONSEQUENCES - FAILURE TO ADVISE DEFENDANT OF COLLATERAL CONSEQUENCES - STANDARD OF REVIEW - MILITARY COURT
United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) ("In the present case, the requirement that Appellant register as a sexual offender is a consequence of his conviction that is separate and distinct from the court-martial process.").

REMOVAL PROCEEDINGS " DEPORTATION " DEPORTATION IS NOT PUNISHMENT
Ting v. United States, 149 U.S. 698, 730 (1893) (stating the deportation proceeding . . . is in no proper sense a trial and sentence for a crime or offence. . . . It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon which his residency depends); see also, Mahler v. Eby, 264 U.S. 32, 39 (1924); Bugajewitz v. Adams, 228 U.S. 585, 591 (1913). Contra Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts about Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1890 passim (2000). Note: The primary effect of ruling that deportation (removal) is not punishment is that the criminal procedure provisions of the Constitution are therefore inapplicable in immigration proceedings. See Robert Pauw, A New Look at Deportation as Punishment: Why at Least Some of the Constitutions Criminal Procedure Provisions Must Apply, 52 ADMIN. L. REV. 305, 309"10 (2000) (noting that by determining that immigration cases are not punishment, the rights of trial by jury, assistance of counsel, the exclusionary principle from the freedom from unreasonable search and seizure, the prohibition against cruel and unusual punishment, etc. do not apply).