Post-Conviction Relief for Immigrants

The same claim can also be reframed as a traditional “failure to investigate” claim that is immune to the “collateral consequences” argument.  As discussed above, effective counsel has a general duty to investigate the case.[229]  Counsel therefore has a duty to uncover any facts of any kind that would be useful in mitigation, either in discussions with the prosecution or to present to the court during plea bargaining and sentencing.  Certainly, if a relatively minor criminal conviction has terrible and drastic adverse immigration consequences not only for the defendant, but for his or her innocent family as well, effective counsel has an obligation to discover those facts and present them to counsel and court during plea-bargaining, in an effort to obtain a plea to the most minor possible offense and the shortest sentence.  This is a traditional form of ineffective assistance of counsel, and does not depend on whether the immigration consequences are labeled “collateral,” whether the court has an obligation to tell the defendant about them, or any other consideration specific to immigration consequences.

Counsel’s failure to investigate mitigating facts in the case may deprive the defendant of counsel’s use of the mitigating information concerning the immigration disaster not only to him or her, but the innocent spouse and children as well, both in plea bargaining with the prosecution and in sentencing with the court.

            The prejudice to the defendant may be reframed from damaging immigration consequences, which criminal counsel and courts sometimes erroneously feel are outside their purview, to the more traditional ineffective-counsel damage of lost opportunity to plead to a less serious offense, or to receive less time in custody as a sentence.  It is far more difficult for the court to ignore these traditional “criminal” forms of prejudice, since these forms of damage are indisputably direct, not collateral.  It is impossible for the prosecution to argue that a shorter sentence is a collateral consequence of the plea.

[229] Strickland v. Washington, 466 U.S. 668 (1984).