Post-Conviction Relief for Immigrants

 

In Downs-Morgan v. United States,[218] the defendant was indicted on two counts.  When the government agreed to dismiss one count and the defendant was assured that a conviction of the remaining count would not subject him to deportation, he pled guilty.  Only after he was released on parole did he learn that his conviction subjected him to deportation and exclusion proceedings.  Because of the possibility of imprisonment and execution if defendant was returned to Nicaragua, the defendant would not have pled guilty but for the misinformation. 

 

            The court stated that this was not a case in which counsel merely failed to inform his client of collateral consequences.  Instead, the defendant specifically asked about deportation and was then misinformed.[219]  In determining whether there was a potential ineffective assistance of counsel claim, the court looked to the totality of circumstances which included the potential harm to the defendant if he was deported.[220]  The court ordered an evidentiary hearing to determine what the attorney’s advice was to the defendant and whether the defendant was afforded reasonably effective assistance of counsel.[221]

 

            In United States v. Nagaro-Garbin,[222] a Peruvian national pled guilty to a drug charge, served his sentence, and then found himself in deportation proceedings.  The defendant had been tried and sentenced in absentia in Peru and was facing a 15-year prison sentence there.  The court determined that an evidentiary hearing was required, reasoning that “if counsel made affirmative misrepresentations in response to specific inquiry from Defendant, Defendant may have a claim for ineffective assistance of counsel.”[223]

 

            Relief is routinely granted when there is ineffective assistance of counsel and prejudice, as when it is shown that “a guilty plea would never have been tendered if defendant had been properly advised by counsel.”[224]  In Strader, defendant was denied the constitutional right to counsel after being misinformed about his parole eligibility by his attorney.  Although parole eligibility, like deportation, is considered to be a collateral consequence under Fed. R. Crim. Pro. 11, when the defendant is grossly misinformed and relies on the misinformation, s/he is denied the constitutional right to effective counsel.[225]

 

            Although a trial judge may have no obligation to advise a defendant of the immigration consequences of his or her plea, Rule 11 was not intended to “relieve counsel of responsibility to the client.  Where the client is an alien, counsel and not the court has the obligation of advising him of his particular position as a consequence of his plea.”[226]  There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable,[227] but, as one court has remarked, we properly may “regard those cases as aberrations.”[228]

[218] Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir. 1985).

[219] Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir. 1985).

[220] Id., at 1541.

[221] Ibid.

[222] United States v. Nagaro-Garbin, 653 F.Supp 586 (E.D. Mich.), aff’d, 831 F.2d 296 (6th Cir. 1987).

[223] Id., at 590 [emphasis in original], citing Downs-Morgan, supra.

[224] Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979). 

[225] United States v. Parrino, 212 F.2d 919 (2d Cir. 1954), and United States v. Sambro, 454 F.2d 918 (D.C. Cir. 1971), two cases which determined that misinformation by counsel of a defendant’s deportability was insufficient to warrant the withdrawal of a guilty plea, were found by the Strader court to be “aberrations.”  Strader, at 64.  In neither case was the question approached in terms of the constitutional entitlement to the effective assistance of counsel.   See Sparks v. Souder, 852 F.2d 882 (6th Cir. 1988).

[226] Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974) [emphasis supplied].

[227] See, e.g., United States v. Sambro, 454 F.2d 918, 921-922 (D.C. Cir. 1971); United States v. Parrino, 212 F.2d 919, 921-922 (2d Cir. 1954).

[228] Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979).