Post-Conviction Relief for Immigrants

 

The California Supreme Court flatly rejected the collateral consequences argument in In re Resendiz[194] and held that the fact that the consequences are collateral does not bar an immigration-related claim of ineffective assistance of counsel.  The Resendiz court found that the immigration consequences of a conviction were indeed “collateral” because they do not automatically follow from the conviction, and are imposed by a different agency.  But the court refused to impose a categorical bar on claims of ineffective assistance of counsel merely because the court is not required, by the due process clause, to advise the defendant on that subject at the time of plea. 

 

The court explained that the two doctrines had different origins: the collateral consequences doctrine “originated as a policy-based adjunct to the due process requirement that a court ensure the guilty pleas it accepts are voluntarily given,” while “the right to competent representation in the guilty plea context directly ‘stemmed from the [Sixth Amendment’s] general principle that all ‘defendants facing felony charges are entitled to the effective assistance of competent counsel.’”[195] 

 

While the right to the effective assistance of counsel is subsumed in the concept of due process of law, the court found:

 

no logical or jurisprudential reason why we should truncate our examination of counsel’s Sixth Amendment responsibilities to noncitizen clients by invoking a categorical concept adopted for policy and convenience in delineating the Fifth and Fourteenth Amendment due process responsibilities of trial courts.  (Emphasis supplied.)

 

Rather, ineffective assistance claims must be assessed under the Sixth Amendment, which looks to the facts of each case to determine “whether counsel’s assistance was reasonable considering all the circumstances.”[196]

 

The Resendiz Court noted that the United States Supreme Court had never applied the “collateral consequences” doctrine to limit claims of ineffective assistance of counsel:

 

The United States Supreme Court has never embraced the collateral consequences doctrine the Attorney General urges us to adopt in this case.  In fact, on review of the Eighth Circuit Court of Appeals’ holding that parole eligibility “is a collateral rather than a direct consequence of a guilty plea, of which a defendant need not be informed” in order for the plea to be considered voluntary (Hill, supra, 474 U.S. at p.55), the high court, instead of itself invoking that doctrine, applied “[t]he longstanding test for determining the validity of a guilty plea [, i.e.,] ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant’” (id. at p. 56).  Nor has the high court ever suggested that ineffective assistance claims based on the giving of erroneous immigration advice ought categorically to be barred.  Rather, recognizing the tremendous personal stakes involved in deportation and exclusion, the court has admonished, “[i]n this area of the law, involving as it may the equivalent of banishment or exile, we do well to eschew technicalities and fictions and to deal instead with realities.”  (Costello v. Immigration Service (1964) 376 U.S. 120, 131.)[197]

 

The court also rejected the “floodgates” argument, finding that immigration consequences were distinctly more severe than other collateral effects, noting that “[p]erhaps nowhere outside of the criminal law are the consequences for the individual so serious.”[198]  The court concluded:

 

“The [defendant’s] interest underlying [an ineffective assistance] claim is his interest in having, before he judges the desirability of the plea bargain, a general knowledge of the possible legal consequences of facing trial.”  That interest will flow, presumably, more from a particular consequence’s practical import than its formal categorization as collateral or direct.  Classifying immigration consequences as collateral does not diminish their status as “material legal principles that may significantly impact the particular circumstances” surrounding a given plea.  Accordingly, that adverse immigration consequences may for certain due process purposes be collateral to petitioner’s conviction should not preclude application of the ordinary Strickland standards to his ineffective assistance claim based on alleged immigration misadvice.[199]

 

The floodgates argument is particularly ridiculous in this context, since every trial court in the state of California has been bound since 1987 to follow Soriano without any particular flood of litigation as a result.

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

[195] Id., at 243 (emphasis supplied) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985), quoting McMann v. Richardson, 397 U.S. 759, 771 (1970).

[196] Id., at 243 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984); accord, Roe v. Flores-Ortega, 528 U.S. 470 478 (2000) (rejecting categorical rule for filing of notice of appeal by counsel).

[197] Id., at 244-45.

[198] Id., at 247, quoting Wallace v. Reno, 24 F.Supp.2d 104, 112 (D.Mass. 1998).

[199] Ibid.