Post-Conviction Relief for Immigrants

 

The advantage of the following argument is that it completely sidesteps the “collateral consequences” argument.  It relies on counsel’s general duty to investigate the facts of the case.  It relies on the existence of drastic adverse immigration consequences from a minor offense as a mitigating fact as to which there is a reasonable probability that it would have been successful in persuading the prosecutor to offer a plea to a lesser offense (which is surely a direct consequence, since it carries a lesser maximum) or the prosecution and court to agree to a shorter sentence (which is surely also a direct consequence).  Thus, even if the courts conclude that silence concerning the immigration consequences, i.e., a failure to advise the defendant concerning them, does not constitute ineffective assistance of counsel, this argument is still viable, since it relies on counsel’s undoubted duty to investigate all exculpatory or mitigating facts wherever they may lie in a case.

 

Counsel Failed to Investigate the Facts of the Case, and Thus Missed Discovering Powerful Mitigating Facts That Probably Would Have Motivated the Prosecution to Offer a Plea to a Lesser Offense, or the Court to Impose a Smaller Sentence.

 

As the Supreme Court held in Strickland v. Washington,[230] counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client.

 

            As the court stated in Sanders v. Ratelle[231] [reversing conviction for defense counsel’s failure to interview defense witness]:

 

[T]he failure to conduct a reasonable investigation constitutes deficient performance.  The Third Circuit has held that ‘[i]neffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision could be made.’  See U.S. v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).  A lawyer has a duty to ‘investigate what information . . . potential eye-witnesses possess[], even if he later decide[s] not to put them on the stand.’  Id. at 712.  See also Hoots v. Allsbrook, 785 F.2d 1214, 1220 (4th Cir. 1986) (‘Neglect even to interview available witnesses to a crime simply cannot be ascribed to trial strategy and tactics.’; Birt v. Montgomery, 709 F.2d 690, 710 (7th Cir. 1983), cert. denied, 469 U.S. 874 (1984) (‘Essential to effective representation . . . is the independent duty to investigate and prepare.’)

 

Here, counsel’s complete failure to investigate the mitigating facts in this case, specifically the adverse immigration consequences that would crash down not only on the petitioner, but on the crime victim and their innocent children, prejudiced petitioner by denying him a reasonable opportunity to obtain a smaller criminal sentence in these cases.  This constituted ineffective assistance under both state and federal constitutions.

 

            This case, however, goes further than a mere allegation defense counsel failed to advise the client of the immigration consequences.  It alleges that at the time of petitioner’s plea, defense counsel also failed to attempt to forestall those terrible immigration consequences.  He failed to take the following actions in an effort to prevent the axe from descending on the client’s neck:

 

(1)    He did not investigate the mitigating nature of those immigration consequences, document them, and present this mitigating information to the prosecution in an effort to obtain a non-deportable plea bargain, in order to protect the crime victim and her innocent children from losing the economic support from the client to which they were (and are) legally entitled.  

 

(2)    He did not recommend (if that effort failed) the entry of a plea to the sole count, without any plea-bargain with the prosecution, in order to preserve the opportunity to present this information and argue to the court, even over prosecution objection, that justice to the victim and her family required a non-deportable sentence no greater than 364 days in custody. 

 

(3)    He did not offer to waive credit for time served in order to give prosecution and court an actual sentence greater than the sentence he served under the actual two-year sentence, while still receiving a formal sentence of 364 days or less. 

 

            Any of these efforts, if successful, would have avoided deportation, while leaving the defendant with exactly the same conviction record and with actual service of the same time in custody, or even greater time in custody.  Moreover, it would have left the client with potential future custody exposure in excess of that to which he is now subject under the existing judgments.

            The factual arguments in favor of these non-deportable outcomes were very powerful.

 

            In the present case, defense counsel’s failure to research immigration law not only deprived petitioner of an understanding of the full impact of the adverse immigration consequences to which the plea subjected him, but also deprived him of the benefit of a strong effort in plea-bargaining and sentencing to use the terrible immigration consequences, not only to himself but to his innocent family, in an effort to obtain a sentence of less than one year on each count.[232]

[230] Strickland v. Washington, 466 U.S. 668, 691 (1984); see also United States v. Burrows, 872 F.2d 915, 918 (9th Cir. 1989) (reversing conviction for failure to investigate a mental defense); Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (holding a failure to investigate “cannot be construed as a trial tactic” where counsel did not even bother to view relevant documents that were available).

[231] Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994).

[232] See People v. Barocio, 216 Cal.App.3d 99, 264 Cal.Rptr. 573 (1989) (counsel’s failure to apply for judicial recommendation against deportation at sentencing constituted ineffective assistance of counsel requiring fresh sentencing hearing).