Post-Conviction Relief for Immigrants

Chapter

§ 6.57 VI. State Advisal Statute Violations

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Violations of state advisal statutes may invalidate convictions based on pleas of guilty. These issues are considered in the discussion of statutory motions to vacate convictions based on violations of such statutes. See § § 5.57, et seq., supra.

Updates

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES
As of March, 2008, 28 states have adopted court rules or statutes that require the court, at plea, to advise the defendant concerning possible immigration consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004); Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code 1016.5 (West 1995); Conn. Gen. Stat. Ann. 54-1j (West 1994); D.C. Code Ann. 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. 17-7-93 (1997); Haw. Hawaii Stat. Ann. 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8 (2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, 29D (West 1994); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. 46-12-210(1)(f) (1997); Neb. Rev. St. 29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. 15A-1022 (a)(7) (West 1994); Ohio Rev. Code Ann. 2943.031 (West 1989); Ore. Rev. Stat. 135.385 (2)(d) (1997); R.I. Gen. Laws 12-12-22 (West 2003); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); 13 S.A. 6565; Wash. Rev. Code Ann. 10.40.200 (West 1995); Wis. Stat. 971.08(1)(c), (2) (West 1994).

POST CON RELIEF - STATE ADVISAL STATUTES
There are now 30 jurisdictions (28 states plus the District of Columbia and Puerto Rico) that require a court to inform a defendant of potential immigration consequences before accepting a plea:

Alaska, Ak. R. Crim. P. 11(C)(3); Arizona, Ariz. R. Crim. P. 17.2(f); California, Cal. Penal Code 1016.5, Connecticut, Conn. Gen. Stat. Ann. 54-1j; Colorado, Col. R. Crim. Proc. 2.8(2); District of Columbia, D.C. Code Ann. 16-713; Florida, Fla. R. Crim. P. 3.172(c)(8); Georgia, Ga. Code Ann. 17-7-93(c);

Hawaii, Haw. Rev. Stat. 802E-1, 802E-2, 802E-3; Idaho, I.S.R. Rule 11(d); Illinois, 725 Ill. Comp. Stat. 5/113-8; Iowa, Iowa R. Crim. P. 2.8(2)(b)(3); Maine, Me. R. Crim. P. 11(h); Maryland, Md. Rule 4-242(e); Massachusetts, Mass. Gen. Laws Ann. ch. 278, 29D; Minnesota, Minn. R. Crim. P. 15.01 10(d) (felony cases), Minn. R. Crim. P. 15.02 2 (misdemeanor cases); Montana, Mont. Code Ann. 46-12-210(1)(f); Nebraska, Neb. Rev. Stat. 29-1819.02; New Jersey, N.J. Directive # 13-05; New Mexico, N.M. Dist. Ct. R. Cr. P. 5-303(F)(5); New York, N.Y. Crim. Proc. Law 220.50(7); North Carolina, N.C. Gen. Stat. 15A-1022(a)(7); Ohio, Ohio Rev. Code Ann. 2943.031; Oregon, Or. Rev. Stat. 135.385(2)(d); Puerto Rico, P.R. Rules Crim. P. 70; Rhode Island, R.I. Gen. Laws 12-12-22; Texas, Tex. Crim. P. Code Ann. 26.13(a)(4); Vermont, Vt. Stat. Ann. tit. 13, 6565(c); Washington, Wash. Rev. Code 10.40.200; Wisconsin, Wis. Stat. 971.08(1)(c), (d), (2) Thanks to Dan Kesselbrenner

Lower Courts of First Circuit

POST CON RELIEF - GROUNDS -- STATE ADVISAL STATUTES - MASSACHUSETTS
Commonwealth v. Rodriquez, 70 Mass.App.Ct. 721 (Ct. App. Nov. 16, 2007) ("We agree with the motion judge that because the defendant now also faces immigration consequences about which she was not warned (denial of readmission), the plain language of the statute requires that the defendant be permitted to withdraw her guilty plea. More specifically, we conclude that the defendant's conviction -- a drug-related "aggravated felony" for purposes of immigration law -- results in the automatic, and now permanent, denial of readmission to the United States, see 8 U.S.C. 1182(a)(9)(A) (2000), and that this is an "enumerated consequence" of the defendant's plea about which she was not warned.").

POST-CONVICTION RELIEF - STATE ADVISAL STATUTE - MASSACHUSETTS
Commonwealth v. Rzepphiewski, 431 Mass. 48, 725 N.E.2d 210 (Mass. 2000) (reconstructed record, based on affidavit of judge plus court docket, is sufficient to constitute a record of the giving of the statutory advisal concerning potential immigration consequences required by Mass. Gen. Laws, ch. 278, 29D (2004), in response to defendant's motion to vacate where official records have been destroyed in regular course of business); see Commonwealth v. Ciampa, 51 Mass. App. Ct. 459, 747 N.E.2d 185, 187 (Mass. App. 2001) (non-contemporaneous record that statutory warnings had been given sufficient as evidence that state advisal statute had not been violated).

Second Circuit

POST CON RELIEF " GROUNDS " COURT ADVISAL OF IMMIGRATION CONSEQUENCES
People v. Peque, 22 N.Y.3d 168 (N.Y. Nov. 19, 2014) (defendants are entitled to notice that deportation may ensue from a guilty plea; however, failure of court to provide immigration advisal does not entitle defendants to automatic vacatur; defendant must establish prejudice), overruling People v. Ford, 86 N.Y.2d 397 (1995).

POST CON RELIEF - AFFIRMATIVE MISADVICE - "MAY" VS. "WILL" RESULT IN DEPORTATION
United States v. Zhang, ___ F.3d ___, 2007 WL 3071644 (2d Cir. Oct. 23, 2007) (although deportation was, in fact, nearly unavoidable, representations by court and prosecutor that defendant faced only possible deportation did not constitute affirmative misadvice by the court or prosecutor; neither the court nor the prosecutor are required to describe possible collateral effects of a guilty plea).

"The possibility of discretionary deportation after a guilty plea is a "collateral" consequence that need not be addressed at the plea hearing. Michel, 507 F.2d at 465-66. The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), however, has altered the landscape of immigration law, and deportation of aggravated felons is now automatic and non-discretionary. 8 U.S.C. 1227(a)(2)(A)(iii); see also INS v. St. Cyr, 533 U.S. 289, 325 (2001) (referring to deportation of aggravated felons as "certain"). Nonetheless, several circuits have held that "automatic" deportation under IIRIRA is still a collateral consequence that need not be addressed prior to a court's accepting a guilty plea. See El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002) ("[I]t is clear that deportation is not within the control and responsibility of the district court, and hence, deportation is collateral to a conviction."); United States v. Amador-Leal, 276 F.3d 511, 516-17 (9th Cir. 2002) ("[W]hether an alien will be removed is still up to the INS. There is a process to go through, and it is wholly independent of the court imposing sentence.... Removal is not part of the sentence."); and United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000) ("However automatically [the defendant's] deportation ... might follow from his conviction, it remains beyond the control and responsibility of the district court in which that conviction was entered and it thus remains a collateral consequence thereof.").

"Although we have acknowledged the existence of the issue, United States v. Cuoto, 311 F.3d 179, 190 (2d Cir. 2002), we have not decided whether "automatic" deportation is a collateral consequence of a guilty plea that need not be mentioned or a direct consequence that required discussion during the plea proceeding. Once again, the issue is not before us. As the district court noted, "[w]hether automatic deportation is a direct or collateral consequence is of no matter in this case because the court did address deportation at the plea hearing." Zhang I, 401 F.Supp.2d at 239. We agree."

CAL POST CON - GROUNDS - STATE ADVISAL STATUTE - PREJUDICE IS SHOWN WHERE DEFENDANT WOULD NOT HAVE ENTERED PLEA IF PROPERLY ADVISED; NOT NECESSARY TO SHOW OUTCOME OF TRIAL WOULD HAVE BEEN DIFFERENT
People v. Castro-Vasquez (2d Dist. March 26, 2007) ___ Cal.Rptr.3d ___, 2007 WL 882132 (prejudice from failure to deliver warning required by Penal Code 1016.5 is shown where it was reasonably probable defendant would not have pleaded guilty if properly advised; it was not necessary to show the outcome of the trial would have been different), following People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210. http://caselaw.lp.findlaw.com/data2/californiastatecases/b192721.pdf

Lower Courts of Second Circuit

POST CON RELIEF - STATE ADVISAL STATUTE - NEW YORK - COLLATERAL CONSEQUENCES - DUE PROCESS
People v. DeJesus, __ N.Y.S.2d __, 2006 WL 1408355 (N.Y.City Crim.Ct. May 20, 2006) ("deportation is a collateral, rather than a direct, consequence of a guilty plea and a defendant who pleads guilty has no constitutional right to be informed of the immigration consequences of the guilty plea.").

Fourth Circuit

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES - FLORIDA
Green v. State, ___ Fla. App. ___, 2005 WL 156724 (4th Dist. January 26, 2005) (defendant suffered sufficient prejudice to make motion to withdraw plea on grounds trial court violated state advisal statute requiring advice to defendant concerning potential immigration consequences of guilty plea, even though deportation proceedings have not yet been begun, since possibility of future deportation proceedings constitutes sufficient "threat of deportation" under Peart v. State, 756 So. 2d 42, 44 (Fla. 2000).)

Fifth Circuit

POST CON RELIEF - FEDERAL - GROUNDS - IMMIGRATION ADVISAL
Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. Nov. 6, 2008) (failure of magistrate judge to inform petitioner at plea of the immigration consequences of a guilty plea did not make the plea involuntary).

Lower Courts of Fifth Circuit

POST CON RELIEF - TEXAS - STATE ADVISAL STATUTE VIOLATION REVERSAL
Kelley v. State, 2007 Tex. App. LEXIS 8821 (Ct. App. Nov. 6, 2007)(when the trial court fails to admonish a defendant about the immigration consequences of his guilty plea, a silent record on citizenship, or a record that is insufficient to determine citizenship, establishes harm by the standard of Rule 44.2(b).).

POST CON RELIEF - STATE ADVISAL STATUTE
Vannortrick v. State of Texas, 227 S.W.3d 706 (Tex.Crim.App. Jun. 27, 2007) (harm from failure to admonish a defendant about immigration consequences of guilty plea is shown upon a record that does not mention, or is insufficient to determine the citizenship of the defendant; failure to admonish resulted involuntary plea).

POST CON RELIEF - STATE ADVISAL STATUTE
Fakeye v. State of Texas, 227 S.W.3d 714 (Tex.Crim.App. Jun. 27, 2007) (failure of trial court to admonish defendant of immigration consequences of plea was harmful error).

POST CON - STATE ADVISAL STATUTE - TEXAS
VanNortrick v. State, __ S.W.3d __, __, 2006 WL 1229749, *2 (Tex.App. May 09, 2006) ("[W]hen the record shows a defendant is a non-citizen, but is silent regarding whether the defendant knew the consequences of his plea, the error is not harmless because a silent record supports an inference that appellant did not know the consequences of his plea. ... Here, the record is silent regarding appellants status as a citizen or non-citizen and whether he was aware of the deportation consequences of his plea.")

POST CON RELIEF - STATE ADVISAL STATUTE - TEXAS
Fakeye v. State, ___ Tex. App. ___, 2006 Tex. App. LEXIS 1072 (2d Dist. Feb. 9, 2006) (trial court erred in failing to admonish defendant, in connection with his guilty plea, of the potential immigration consequences of plea in violation of Texas Code of Criminal Procedure 26.13(a)(4)).

Lower Courts of Sixth Circuit

POST CON - OHIO - IMMIGRATION CONSEQUENCES - STATE ADVISAL STATUTE ERROR
State v. White, 2005 Ohio 4898; 837 N.E.2d 1246; 2005 Ohio App. LEXIS 4407 (Sept 16, 2005) (court of appeal reversed for abuse of discretion trial courts denial of motion to vacate plea based on claim of violation of Ohio state advisal statute pursuant to R.C. 2943.031(D) and Crim.R. 32.1, holding the defendant had no duty to inform the court of his citizenship status; defendants deportation order satisfied the prejudice requirement, since it showed more than a mere possibility of deportation; the defendant was not required to raise this issue on direct appeal from the sentence, since his citizenship status was outside the record on appeal).

POST CON RELIEF - GROUNDS -- STATE ADVISAL STATUTE -- OHIO
State v. Sibai, 2005 Ohio 2730; 2005 Ohio App. LEXIS 2573 (June 2, 2005) (trial court erred in denying motion to vacate guilty plea, when at the time of the plea, the trial court failed to provide the advisement pursuant to O.R.C. 2943.031(A) that he was subject to possible deportation, exclusion from the United States or denial of naturalization).

POST CON - OHIO - GROUNDS -- STATE ADVISAL STATUTE -- COURT TAKING PLEA NEED ONLY SUBSTANTIALLY COMPLY WITH STATUTE REQUIRING ADVICE ON POSSIBLE IMMIGRATION CONSEQUENCES OF PLEA
State v. Badawi, ___ ?? ___, 2004 Ohio App. LEXIS 4536 (Ohio Ct. App. Sept. 20, 2004) (court taking plea need only substantially comply with statute requiring advice on possible immigration consequences of plea, R.C. 2943.031(A), which provides that "prior to accepting a plea of guilty or a plea of no contest to an indictment . . . charging a felony . . ., the court shall address the defendant personally, provide the following advisement to the defendant that shall be entered in the record of the court, and determine that the defendant understands the advisement: 'If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.'").

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTE - TIMELINESS - OHIO - DUTY TO ACT DID NOT ARISE UNTIL IMMIGRATION CONSEQUENCES OF PLEA BECAME EVIDENT
State v. Francis, 104 Ohio St.3d 490, 820 N.E.2d 355 (where the immigration-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered, the mere fact over nine years has elapsed from the date of his plea did not constitute grounds for denying his motion to vacate).

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTE - TIMELINESS - OHIO - TIMELINESS IS ONLY ONE OF SEVERAL FACTORS TO CONSIDER IN RULING ON A MOTION TO VACATE BASED ON FAILURE TO GIVE STATUTORY ADVISAL
State v. Francis, 104 Ohio St.3d 490, 820 N.E.2d 355 (the timeliness of a motion to withdraw a plea pursuant to R.C. 2943.031(D) for lack of statutory advisal concerning potential immigration consequences of guilty plea was just one of many factors a trial court was to take into account when considering whether to grant a motion to withdraw a guilty plea, even where motion was filed nine years after plea: "Depending on the particular facts, untimeliness will sometimes be an important factor in reaching a decision on a motion to withdraw. On the other hand, in some cases even a considerable delay in filing the motion to withdraw will not be a factor supporting a denial of the motion, such as when the immigration-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered. This is not a situation that requires a bright-line rule. As one of many factors underlying the trial court's exercise of discretion in considering the motion to withdraw, timeliness of the motion will be of different importance in each case, depending on the specific facts.").

Seventh Circuit

CONTROLLED SUBSTANCES - ATTEMPTED SIMPLE POSSESSION CONVICTION EXPUNGED PURSUANT TO A STATE REHABILITATIVE STATUTE CONTINUED TO EXIST AS A GROUND OF DEPORTATION
Ramos v. Gonzales, ___ F.3d ___, 2005 WL 1618821 (7th Cir. July 12, 2005) (Nebraska conviction for attempted possession of cocaine, in violation of Neb.Rev.Stat. 28-201, 28-416 (2003), continued to constitute a "conviction," for removal purposes, even though it had been expunged pursuant to a rehabilitative statute, Neb.Rev.Stat. 29-2264, resulting in an order stating that "the adjudication previously entered by this Court is hereby set aside and nullified, and the Court further orders that all civil disabilities and disqualifications imposed as a result of said adjudication are hereby removed" and a later order stating rehabilitation had not played a part in the order, despite an argument that Equal Protection required granting the same effect to this state court order as would have been granted to an order under the Federal First Offender Act, 18 U.S.C. 3607), following Gill v. Ashcroft, 335 F.3d 574, 577-78 (7th Cir. 2003).

Lower Courts of Seventh Circuit

POST CONVICTION - OHIO - STATE ADVISAL STATUTE
State v. Joseph, __ N.E.2d __ (Ct. App. 7th Dist. 2006) (court of appeal reversed trial court's denial of motion to vacate guilty plea for violation of state advisal statute requiring court taking a plea properly to advise the defendant of its immigration consequences).

Ninth Circuit

POST CON RELIEF " GROUNDS " COURT'S FAILURE TO ADVISE
United States v. Delgado-Ramos, 635 F.3d 1237 (9th Cir. Apr. 7, 2011) (even after the Supreme Courts decision in Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), a federal district courts failure to provide accurate immigration advice is not a violation of Rule 11 of the Federal Rules of Criminal Procedure nor a due process violation), continuing to follow United States v. Amador"Leal, 276 F.3d 511, 517 (9th Cir. 2002) (Rule 11 of the Federal Rules of Criminal Procedure and due process do not require a district court to inform a defendant of the immigration consequences of his plea).

POST CON RELIEF - GROUNDS - INSUFFICIENT EVIDENCE
Smith v. Patrick, ___ F.3d ___, 2007 WL 4233693 (9th Cir. Dec. 4, 2007) (no rational trier of fact could have found beyond a reasonable doubt that petitioner caused the child's death, and a state court's affirmance of petitioner's conviction for assault on a child resulting in death was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979)).

Lower Courts of Ninth Circuit

POST-CON - GROUNDS - IMMIGRATION ADVISALS
People v. Omoighe-Akhile, 167 Cal.App.4th 558 (Oct. 9, 2008) ("The trial court denied appellant Fred Omoighe Akhile's section 1016.5 motion to vacate because the prosecution proved he had been advised of the immigration consequences at his arraignment several weeks before entering his plea. We reverse because we construe section 1016.5 to require that the advice be provided during the taking of the plea.")

POST-CONVICTION RELIEF - STATE REHABILITATIVE RELIEF -- CALIFORNIA
California Penal Code Section 1203.4 has been amended to exclude certain offenders from relief under the "mandatory" or "nondiscretionary" part of that code section. Now persons convicted of the following offenses, even if they have completed probation in a flawless manner, will have to petition the court to exercise its discretion in granting 1203.4 relief. Persons convicted of the following code sections are affected by this latest statutory revision:

20001 CVC [hit and run driving with personal injury, etc.];

20002 CVC [hit and run driving with property damage only];

23152 CVC [driving a motor vehicle while under the influence of alcohol or drugs];

23153 CVC [driving a motor vehicle while under the influence of alcohol or drugs with personal injury];

23103 CVC [reckless driving];

23103.5 CVC [reckless driving with alcohol involved];

23104 CVC [reckless driving causing bodily injury];

23105 CVC [reckless driving causing specified bodily injury (unconsciousness; concussion; bone fracture; protracted loss or impairment of function or a bodily member or organ; a wound requiring extensive suturing; serious disfigurement; brain injury; paralysis)];

191.5(b) Penal Code [vehicular manslaughter while intoxicated];

192(c) Penal Code [vehicular manslaughter];

2800.2 CVC [attempting to evade a peace officer while driving recklessly];

2800.3 CVC [willful flight causing death or serious bodily injury];

21651(b) CVC [driving on a highway other than to the right of an intermittant barrier or a dividing section which separates one or more opposing landes of traffic];

22348(b) CVC [driving a vehicle upon a highway at a speed greater than 100 miles per hour];

23109(a) CVC [motor vehicle speed contest];

23109(c) CVC [motor vehicle exhibition of speed];

23109.1 CVC [engaging in motor vehicle speed contest causing specified bodily injuries];

31602 CVC [unlawful driving on a public highway for the purpose of transporting explosives];

23140(a) CVC [driving with a BAC of 0.05 by a person under the age of 21];

23140(b) CVC [driving while UIA (0.05) by a person under the age of 21];

14601 CVC [driving while privileges suspended pursuant to certain offenses];

14601.1 CVC [driving while privileges suspended pursuant to other offenses];

14601.2 CVC [driving while license suspended or revoked for DUI];

14601.3 CVC [habitual traffic offender];

14601.4 CVC [driving with suspended or revoked driver's license resulting in injury to another person];

14601.5 CVC [driving while privileges suspended for failure to take chemical test or for driving with specified blood alcohol level].

Thanks to Jerome P. Mullins

Lower Courts of Tenth Circuit

POST CON RELIEF " GROUNDS " JUDICIAL ADVICE OF IMMIGRATION CONSEQUENCES " COLORADO
People v. Nguyen, 80 P.3d 903 (Colo. App. 2003) (a judge has no affirmative obligation to make an advisement regarding the immigration consequences, but once a judge chooses to do so, the advice given must be non-negligent and proper; if the advice lulls the defendant into a false sense of security, the plea should be withdrawn).

Eleventh Circuit

POST CON RELIEF - STATE ADVISAL STATUTES - CORAM NOBIS VACATUR OF STATE CONVICTION FOR VIOLATION OF STATE STATUTORY RIGHT CEASED TO BE A CONVICTION FOR PURPOSES OF THE JURISDICTION LIMITATION
Alim v. Gonzales, ___ F.3d ___, 2006 WL 1059322 (11th Cir. Apr. 24, 2006) (Florida conviction of domestic battery, vacated by grant of coram nobis on grounds of violation of state advisal statute requiring court accepting plea to warn defendant of possible immigration consequences, ceased to be a conviction for purposes of barring jurisdiction over petition for review under 8 U.S.C. 1252(a)(2)(C), on account of two convictions of crimes of moral turpitude, even though order did not specify ground of vacatur, since coram nobis petition did so and was granted), deferring to BIA approach in Matter of Adamiak, 23 I & N Dec. 878 (BIA Feb. 8, 2006).

Lower Courts of Eleventh Circuit

POST-CON - GROUNDS - STATE ADVISAL STATUTE
State v. Gaston, __ So.2d __, 2007 WL 1753333 (Fla.App. 3 Dist. Jun 20, 2007) ("[t]he motion must allege, in addition to the lack of a deportation warning, that the defendant would not have entered the plea if properly advised and that under current law the plea does render the defendant subject to being removed from the country at some point in the future.")

POST CON RELIEF - FLORIDA - STATE ADVISAL STATUTE
Gaston v. State, ___ Fla. ___, 2007 Fla. LEXIS 229 (Feb. 8, 2007) (motion to vacate 10-year-old conviction on ground court failed to advise defendant of possibility of deportation requires only an allegation that the plea subjects the defendant to deportation, rather than a specific threat of deportation, to establish prejudice), following Green v. State, 895 So. 2d 441 (Fla. 4th DCA 2005), quashed, 944 So. 2d 208, 218 (Fla. 2006).

POST CON RELIEF - STATE ADVISAL STATUTE - FLORIDA - TIME PERIOD FOR FILING MOTION TO VACATE
State v. Green, ___ Fla. ___ (Oct. 26, 2006) (a Florida criminal "defendant seeking to withdraw a plea because the trial court did not advise the defendant of the possibility of deportation as part of the plea colloquy must file a rule 3.850 motion within two years after the judgment and sentence become final. The motion must allege, in addition to the lack of a deportation warning, that the defendant would not have entered the plea if properly advised and that under current law the plea does render the defendant subject to being removed from the country at some point in the future. A defendant filing outside the two-year limitation period must allege and prove that he or she could not have ascertained the immigration consequences of the plea with the exercise of due diligence within the two-year period. Our holding in this case reduces the time in which a defendant must bring a claim based on an alleged violation of rule 3.172(c)(8). Therefore, in the interest of fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today. In cases now pending in the trial and appellate courts on this issue, courts should apply the criteria set out herein. If relief is denied in a case now pending because the defendant has not alleged or established that he or she is subject to or threatened with deportation, the defendant should be allowed to refile in compliance with the standards set out in this case within sixty days of affirmance, denial, or dismissal. All other defendants have two years from the date their cases become final in which to seek relief under our holding today.").

POST CON RELIEF - FLORIDA
Charles v. State, ___ Fla. App. ___, 2006 Fla. App. LEXIS 1641 (Feb. 10, 2006) (per curiam) (motion to find guilty plea involuntary, under Florida Rule of Criminal Procedure 3.850, should have been granted on the ground that defendant was not advised, as required by Florida Rule of Criminal Procedure 3.172(c)(8), that he could be subject to deportation as a consequence of his plea, and he established (1) he did not know the plea might result in deportation, (2) he is "threatened" with deportation because of the plea, and (3) had he known of the possible consequence, he would not have entered the plea, since the defendant attached to the motion a notice from the Immigration and Naturalization Service that Appellant was subject to deportation based, in part, on being convicted of acts constituting a crime involving moral turpitude, and an order from an immigration judge denying his requests for asylum and for withholding of deportation), citing Peart v. State, 756 So. 2d 42 (Fla. 2000); Payne v. State, 890 So. 2d 284 (Fla. 5th DCA 2004).

POST CON RELIEF - FLORIDA - GROUNDS - STATE ADVISAL STATUTE - FAILURE TO ADVISE OF POSSIBILITY OF DEPORTATION IS NOT GROUNDS TO VACATE PLEA WHERE DEFENDANT IS NOT THREATENED WITH IMMEDIATE DEPORTATION; THREAT OF EXCLUSION IS NOT SUFFICIENT
Florida v. Gaston, 911 So.2d 257 (Fla. Dis. Ct. App. Sept. 28, 2005) ("In Kindelan v. State, 786 So. 2d 599, 600 (Fla. 3d DCA 2001), we held that following application for adjustment of immigration status, advice from INS of excludability from the United States due to a conviction fails to establish a prima facie case for relief, because "advising a defendant that a conviction constitutes grounds for exclusion from the United States is not the same as being threatened with deportation as a result of a plea." This holding is dispositive. See Aparicio v. State, 893 So. 2d 630, 631 (Fla. 3d DCA 2005) (concluding that a defendant advised by an immigration attorney that he would be detained if he applied for citizenship failed to establish a prima facie case because it is not the possibility of immigration consequences, but rather imminent deportation proceedings that support relief); Saldana v. State, 786 So. 2d 643, 645 (Fla. 3d DCA 2001) (concluding that issuance of a detainer by INS notifying initiation of investigation did not establish a prima facie case for relief).").

POST CON RELIEF - FLORIDA - ADVISAL STATUTE -- IMMIGRATION CONSEQUENCES
Franco v. State, __ So.2d __ (Fla. Dist. Ct. App. March 30, 2005) (appellant's motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, denied because the allegation that the appellant was not advised of the immigration consequences of her plea was clearly refuted by the record) Perez v. State, __ So.2d __ (Fla. Dist. Ct. App. March 30, 2005) (warning that "The law requires that I advise you that it is possible that the immigration authorities could take some action against you, such as throwing you out of the country. I doubt that will happen, but the possibility exists. Do you understand that?" found sufficient to fulfilled the requirements of Florida Rule of Criminal Procedure 3.172(c)(8)).

DC Circuit

POST-CONVICTION RELIEF - STATE ADVISAL STATUTE - DISTRICT OF COLUMBIA
Slytman v. United States, 804 A.2d 1113 (D.C. 2002) (substantial compliance with state advisal statute sufficed to give defendant sufficient notice of potential immigration consequences of plea).

Lower Courts of DC Circuit

POST CON RELIEF - STATE ADVISAL STATUTE - DISTRICT OF COLUMBIA
Valdez v. United States, 906 A.2d 284, 2006 D.C.App. LEXIS 498 (D.C. Ct. App. Aug. 31, 2006) (reconstructed record, based on affidavit of judge or other percipient witness, may be sufficient to constitute a record of the giving of the statutory advisal concerning potential immigration consequences required by D.C. Code 16-713 (2001) in response to defendant's motion to vacate where official records have been destroyed in regular course of business).

Other

CAL POST CON " STATE ADVISAL STATUTE " PENAL CODE 1016.5 DOES NOT REQUIRE ADVICE TO NATURALIZED U.S. CITIZEN
People v. Gari, 199 Cal.App.4th 510 (4th Dist. Sept. 12, 2011) (California Penal Code 1016.5, which requires that alien defendant be admonished that a guilty or no-contest plea may affect immigration status, does not require the court to advise defendants that a plea to a crime committed prior to the date of naturalization may result in revocation of citizenship; defendants assertions that he pleaded guilty to the offenses charged, without knowing the legal effect of the plea on his citizenship status, were insufficient to support any similar form of nonstatutory relief based on equity and fairness).

POST CON RELIEF " STATE ADVISAL STATUTES " WARNING MUST BE GIVEN AT THE TIME OF PLEA " WARNING AT A PRIOR COURT APPEARANCE IS INSUFFICIENT
State v. Mena-Rivera, 280 Neb. Rep. 948, 953-954 (Dec. 17, 2010) (the warning concerning potential removal or denial of naturalization immigration consequences of a plea, required under Neb. Rev. Stat. 29-1819.02, must be delivered by the court immediately prior to the entry of the plea, and a warning given at a prior court appearance is insufficient, because weeks or months may often pass between when a court initially arraigns a defendant and when the defendant enters his plea of guilty or nolo contendere and because defendants often plea to a lesser charge than what they were initially arraigned on; the ICE detainer submitted by Mena-Rivera was sufficient evidence that he did in fact face some immigration consequence as a result of his plea).

POST CON RELIEF - STATE ADVISAL STATUTES - IDAHO COURT RULE REQUIRES STATE CRIMINAL JUDGES TO ADVISE ALL DEFENDANTS CONCERNING POSSIBLE IMMIGRATION CONSEQUENCES
Effective July 1, 2007: Rule 11. Pleas.

(d) Other advisories upon acceptance of plea. The district judge shall, prior to entry of a guilty plea or the making of factual admissions during a plea colloquy, instruct on the following:

(1) The court shall inform all defendants that if the defendant is not a citizen of the United States, the entry of a plea or making of factual admissions could have consequences of deportation or removal, inability to obtain legal status in the United States, or denial of an application for United States citizenship.

POST CON RELIEF - STATE ADVISAL STATUTE - VERMONT
The governor of Vermont signed an immigration advisement bill into law, effective Sept. 1, 2006.
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT121.HTM

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE -- FAILURE TO ADVISE DEFENDANT OF COLLATERAL SEX OFFENDER REGISTRATION CONSEQUENCES DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE - MILITARY COURT
United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) (failure to inform accused of state sex offender registration requirement as collateral consequence of court-martial conviction did not constitute ineffective assistance of counsel so as to render guilty plea to child pornography charges improvident, but for future cases, the court expects defense counsel to inform the defendant of the federal sex offender registration collateral consequences of a plea; violation of this prospective rule will not per se be ineffective assistance, but will be taken into account in assessing effective assistance).

POST CON RELIEF - GROUNDS - INVOLUNTARY PLEA - COLLATERAL CONSEQUENCES - FAILURE TO ADVISE DEFENDANT OF COLLATERAL SEX OFFENDER REGISTRATION CONSEQUENCES DID NOT INVALIDATE GUILTY PLEA - MILITARY COURT
United States v. Miller, 63 M.J. 452 (U.S. Armed Forces, Aug. 29, 2006) (failure to inform accused of state sex offender registration requirement as collateral consequence of court-martial conviction did not render guilty plea to child pornography charges improvident).

CONVICTION - STATE REHABILITATIVE RELIEF
Matter of LUVIANO-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) (noncitizen whose firearms conviction was expunged pursuant to section 1203.4 of the California Penal Code has been "convicted" for immigration purposes; Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005), followed.).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3508.pdf

CONVICTION - STATE REHABILITATIVE RELIEF
Matter of MARROQUIN-Garcia, 23 I&N Dec. 705 (A.G. 2005) (a noncitizen whose firearm conviction was expunged pursuant to California Penal Code 1203.4 is still "convicted" for immigration purposes under INA 101(a)(48)).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3507.pdf

POST CON RELIEF - STATE ADVISAL STATUTE - CONNECTICUT
Conn. General Statutes (Rev. to 2003) 54-1j (a) provides in relevant part: "The court shall not accept a plea of guilty . . . from any defendant in any criminal proceeding unless the court advises him of the following: 'If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.'"

CRIM DEF - RIGHT NOT TO DISCLOSE IMMIGRATION STATUS POST CONVICTION RELIEF - STATE ADVISAL STATUTES - RIGHT NOT TO DISCLOSE IMMIGRATION STATUS
Arizona rules of criminal procedure contain a state advisal requirement that the court, before accepting a plea of guilty or no contest, advise every defendant concerning potential adverse immigration consequences of the plea. These rules also state the defendant is not to be required to disclose his or her immigration status. After plea, however, defendants are seen by a presentence report writer, who asks them their birthplace, mothers name and birthplace, the fathers name and birthplace. This information is included in a presentence probation report which is presented to the judge, and is also used as a basis for notifying ICE of the situation so an immigration hold can be placed in an appropriate case. The defendant can decline to answer these questions, if necessary raising a Fifth Amendment privilege against self-incrimination objection in addition to the rule of court prohibiting the court from inquiring into the defendant's immigration status. In addition, illegal presence in the United States is now a statutory aggravating factor for Arizona crimes, which a judge can use to increase sentence. To aggravate the sentence on this basis, the sentencing judge need only find the illegal presence aggravating factor by a preponderance, not beyond reasonable doubt. ICE will no doubt look closely at the status of a person who refused to answer these questions. It may detain them while they look into the situation. Thanks to Beth Houck for this analysis. Defense counsel or immigration counsel can argue that it is unreasonable to assume undocumented status based on alienage because a person can be in legal status as a nonimmigrant, can be a permanent resident, can have protection under 8 U.S.C. 1231(b)(3)(withholding) or "withholding" or "deferral of removal" under the Convention Against Torture (See 8 CFR 1208.18). Second, a person in status or who otherwise has the right to remain in the United States (such as the person with "withholding" or "deferral of removal," or even a person granted "deferred action" by immigration authorities) might still have a Fifth Amendment right to remain silent because of a variety of criminal offenses in which alienage is an element. Even legal permanent residents sometimes commit the offense of illegal entry and are subject to prosecution for it. (If a person makes a weekend visit to Nogales, suffers a lost or stolen wallet, and has a need to get back to work Monday in the United States, a lawful permanent resident may reenter illegally for one's job). Alienage is also an element of illegal reentry as well as other federal offenses. See, e.g., 8 U.S.C. 911 (false claim to citizenship); 8 US.C. 1282(c) (alien crewman overstay); 8 U.S.C. 1304 (18 or over, not carrying immigration documentation); 8 U.S.C. 1325 (illegal entry into U.S.); 8 U.S.C. 1326 (illegal reentry after deportation or removal). A non-citizens potential exposure to criminal prosecution thus gives rise to a Fifth Amendment right against self-incrimination. See Kastigar v. United States, 406 U.S. 441, 444 (1972); U.S. v. Alderete-Deras, 743 F.2d 645 (9th Cir. 1984); Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir. 1984). If the person has no prior encounters with immigration officials, does not reveal his/her birthplace, and is not in possession of foreign identification, ICE will be unable to complete the paperwork and will not be able to do anything with the person. On the other hand, if the prints match, ICE will do what it would do if the person confessed to foreign birth. Thanks to Lynn Marcus.

STATE ADVISAL STATUTES
Even though many state advisal statutes are inaccurate in informing some noncitizens they "may" be deported, when the specific conviction in fact triggers mandatory deportation, there is no workable judicial advisal that correctly advises all noncitizen defendants of the exact immigration consequences of a plea, even to an aggravated felony. For example, a plea to a sexual abuse of a minor misdemeanor might well fall within the petty offense exception and thus allow a LPR married to a USC to adjust status to get a new green card and thus avoid deportation as in Matter of Rainford, 20 I. & N. Dec. 598 (BIA (1992) and Matter of Gabrielsky, 20 I. & N. Dec. 750 (BIA 1993). Thus, in that case, a plea to an aggravated felony would not trigger mandatory deportation. It would be a serious mistake for the court to misadvise the defendant that he will absolutely be deported when there is an easy remedy available to protect against deportation. The court is simply not in any position, without investigating the actual immigration status and prior criminal history of a defendant, and doing research on the specific immigration consequences of the new conviction in light of the prior history, to give the defendant accurate information on the exact immigration consequences of the new conviction. The immigration consequences of any criminal disposition depend on (a) the detailed immigration situation of each individual client, (b) the exact record of conviction in the criminal case, and (c) the defendant's prior record, as well as (d) certain conduct-based grounds of inadmissibility, deportability, and bases for relief or waivers in immigration court. This analysis is beyond the duty or power of the court to give to every noncitizen defendant. The solution is for criminal defense counsel to do this investigation, obtain confidential privileged attorney-client information, verify the exact immigration consequences of each disposition, try to avoid the worst of them if possible, and tell the client what is going on in a confidential attorney-client conference. It is not in the client's interest to inform the prosecutor or court of the exact nature (or even approximate nature) of the confidential and privileged advice defense counsel gives the defendant. The criminal court will breathe a sigh of relief that this is too complicated and not their function; courts will likely be happy to leave it to criminal defense counsel. If the court wants to police defense counsel's performance of their duty to do this, in order to avoid future IAC claims, the court's question should be limited to whether counsel has investigated the actual immigration consequences of the plea and informed the client of them (without specifying what they are) and leaving it at that. As far as the court's advisal goes, the current version is the best the court can realistically do: to tell the defendant, "If you are not a U.S. citizen, this plea might cause your (a) deportation, (b) exclusion, or (c) denial of naturalization or other immigration benefits."

STATE ADVISAL STATUTES - MASSACHUSETTS Chapter 225 of the Acts of 2004

AN ACT RELATIVE TO COURT ADVISEMENT.

     Be it enacted by the Senate and House of Representatives in General Court
assembled, and by the authority of the same, as follows:

     SECTION 1. Chapter 278 of the General Laws is hereby amended by striking out
section 29D, as appearing in the 2002 Official Edition, and inserting in
place thereof the following section:-

     Section 29D. The court shall not accept a plea of guilty, a plea of nolo
contendere, or an admission to sufficient facts from any defendant in any
criminal proceeding unless the court advises such defendant of the
following: "If you are not a citizen of the United States, you are hereby
advised that the acceptance by this court of your plea of guilty, plea of
nolo contendere, or admission to sufficient facts may have consequences of
deportation, exclusion from admission to the United States, or denial of
naturalization, pursuant to the laws of the United States." The court shall
advise such defendant during every plea colloquy at which the defendant is
proffering a plea of guilty, a plea of nolo contendere, or an admission to
sufficient facts. The defendant shall not be required at the time of the
plea to disclose to the court his legal status in the United States.

     If the court fails so to advise the defendant, and he later at any time
shows that his plea and conviction may have or has had one of the enumerated
consequences, even if the defendant has already been deported from the
United States, the court, on the defendant's motion, shall vacate the
judgment, and permit the defendant to withdraw the plea of guilty, plea of
nolo contendere, or admission of sufficient facts, and enter a plea of not
guilty. Absent an official record or a contemporaneously written record kept
in the court file that the court provided the advisement as prescribed in
this section, including but not limited to a docket sheet that accurately
reflects that the warning was given as required by this section, the
defendant shall be presumed not to have received advisement. An advisement
previously or subsequently provided the defendant during another plea
colloquy shall not satisfy the advisement required by this section, nor
shall it be used to presume the defendant understood the plea of guilty, or
admission to sufficient facts he seeks to vacate would have the consequence
of deportation, exclusion from admission to the United States, or denial of
naturalization.

     SECTION 2. Section 1 shall apply to pleas of guilty, pleas of nolo
contendere and admissions to sufficient facts which occur on or after the
effective date of this act. Former section 29D of chapter 278 of the General
Laws shall continue to apply to pleas of guilty, pleas of nolo contendere
and admissions to sufficient facts which occurred before the effective date
of this act.

Approved July 29, 2004.

POST CON - STATE ADVISAL STATUTES
Cal. Penal Code 1016.5 (West 1995); Conn. Gen. Stat. Ann. 54-1j (West 1994); D.C. Code Ann. 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. 17-7-93 (1997); Haw. Rev. Stat. 802E-2 (West 1994); Mass. Gen. Laws Ann. ch. 278, 29D (West 1994); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); Mont. Code Ann. 46-12-210(1)(f) (1997); Neb. Rev. St. 29-1819.02 (West 2003), N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1992); N.Y. Crim. Proc. Law 220.50(7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. 15A-1022(a)(7) (West 1994); Ohio Rev. Code Ann. 2943.031(A) (Anderson 1993); Ore. Rev. Stat. 135.385(2)(d) (1997); R.I. Gen. Laws 12-12-22 (West 2003), Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); Wash. Rev. Code Ann. 10.40.200 (West 1995); Wis. Stat. Ann. 971.08(1)(c) (West 1994). [SEPT 3, 2003] Notes: -- DC: time frame unknown -- Florida: general writ of error coram nobis provision. -- Wisconsin: Possibly may bring the action more than a year from conviction based on "good cause" ... this is based on the interpretation of the general statute for post conviction relief. -- Nebraska: time frame unknown

POST CONVICTION RELIEF - ARIZONA - STATE ADVISAL RULE OF COURT
The Arizona Supreme Court amended the rules of criminal procedure to require judges to advise criminal defendants that their pleas may have immigration consequences. Arizona Rules of Court, rule 17.2(f)(2004). The court rejected an express provision requiring the court to vacate a conviction on grounds that the court failed to comply with the rule, but the new rule leaves open the possibility that a violation may give grounds to vacate, and at least avoided an explicit provision saying noncompliance is not a basis on which to vacate the conviction. The new rule provides that before taking a plea, the court "shall address the defendant personally in open court, informing him or her of and determining that he or she understands the following: . . . f. That if he or she is not a citizen of the United States, the plea may have immigration consequences. Specifically, the court shall state, 'If you are not a citizen of the United States, pleading guilty or no contest to a crime may affect your immigration status. Admitting guilt may result in deportation even if the charge is later dismissed. Your plea or admission of guilt could result in your deportation or removal, could prevent you from ever being able to get legal status in the United States, or could prevent you from becoming a United States citizen.' The court shall also give the advisement in this section prior to any admission of facts sufficient to warrant finding of guilt, or prior to any submission on the record. The defendant shall not be required to disclose his or her legal status in the United States to the court." Order Amending Rule 17.2, Rules of Criminal Procedure, Arizona Supreme Court No. R-03-0025 (June 8, 2004).

STATE ADVISAL STATUTES - NEW MEXICO - PAREDEZ DECISION COMING
The Paredez case was argued on June 23, 2004 before the New Mexico Supreme Court, to consider issues arising from the current requirement that the court advise the criminal defendant prior to plea that there "might" be immigration consequences is not accurate. The current advice is arguably inaccurate in stating deportation might result, as applied to an aggravated felony mandatory deportation situation. The case also raises issues involving the necessity of a showing of prejudice that the defendant would not have pleaded guilty had he known he would have been automatically deported, and whether this issue should instead be raised by habeas and whether the record is adequate to find either an involuntary plea or ineffective assistance of counsel. Thanks to Tova Indritz for this report.

POST CON RELIEF - STATE ADVISAL STATUTE - MASSACHUSETTS M.G.L. c. 278 sec. 29D: 29D.
Conviction upon plea of guilty, nolo contendere or an admission to sufficient facts; motion to vacate The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States. If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization. CREDIT(S) Added by St.1978, c. 383. Amended by St.1996, c. 450, 254; St.2004, c. 225, 1, eff. Oct. 27, 2004.

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES MAY REQUIRE VACATING CONVICTION IF COURT FAILED TO ASCERTAIN DEFENDANT READ AND UNDERSTOOD CONTENTS OF FORM
It is possible to have the defendant's ability to read English tested, and determine the grade level at which s/he reads and understands English. The language used for many of the state advisal statutes, e.g., California Penal Code 1016.5, warning is quite difficult, and it takes a reading level of at least 12th grade to understand 70% of the warning. Microsoft WORD has the ability to compute the Flesch-Kincaid Grade Level score, which gives the U.S. grade level required to understand a given text, under Tools, Spelling and Grammar, Options, Grammar, Show Readability Statistics. When this operation was performed on the Penal Code 1016.5 text, it produced a readability score of 12th grade. For a description of the process of challenging a defendant's competency to understand and waive Miranda rights, and the analogous question of challenging ability to understand the immigration waiver, see I. Bruce Frumkin & Alfredo Garcia, Psychological Evaluations and the Competency to Waive Miranda Rights, THE CHAMPION 12 (Nov. 2003); S. Kassin & G. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST (November 2004). If the defendant's reading grade level is below the readability score required to understand the warning, it is possible to argue that the defendant did not understand the warning, and the conviction must therefore be vacated. See, e.g., People v. Ramirez (1999) 71 Cal.App.4th 519, 522 (Penal Code 1016.5 advice can be given by means of a form, provided: "The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney."), quoting In re Ibarra (1983) 34 Cal.3d 277, 285-286.

POST-CON - STATE ADVISAL STATUTES - ALASKA
Ak.R.Crim.P. 11(c)(3)(C) (requiring Alaska state court judges to advise criminal defendants that a criminal conviction may have adverse immigration consequences).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - FAILURE TO ADVISE - MICHIGAN
People v. Davidovich, 463 Mich. 446 (2000) (immigration consequences of a defendant's guilty plea are collateral matters, and defendant's failure to appreciate those consequences does not render defendants plea unknowing or involuntary; counsel's failure to give immigration advice does not constitute ineffective assistance of counsel).

POST CON RELIEF - GROUNDS - STATUTE UNCONSTITUTIONAL - ILLEGAL POSSESSION OF FIREARM BY UNDOCUMENTED PERSON STATUTE ARGUABLY UNCONSTITUTIONAL
Counsel can argue that 18 U.S.C. 922(g)(5)(A) is unconstitutional because it limits the right of the people to bear arms in light of D.C. v. Heller.

The government's arguments are (1) that "illegal aliens" are not part of the "people" for purposes of Second Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding no extraterritorial applicability of the Fourth Amendment because a noncitizen in Mexico is not part of "people" for Fourth Amendment purposes); and (2) that the limitation on bearing arms is justified in case of "illegal aliens" even under D.C. v. Heller because of their "propensity to criminality." There is a great deal of evidence, however, that immigrants commit 50% to 67% fewer criminal offenses than U.S. citizens commit, so this second argument does not seem factually justifiable. E.g., Radley Balko, The El Paso Miracle: How can a comparatively poor, high-immigration town that sits across the border from super-violent Ciudad Juarez be one of the safest big cities in America?, Reason Magazine, Reasononline (July 6, 2009), http://www.reason.com/news/show/134579.html; Derek Monson, Just the Facts and Reading the Tea Leaves, Sutherland Institute Releases Findings on Undocumented Immigrants in County Jails, http://sutherlandinstitute.org/newsletter/story.asp?n=132&s=328 (undocumented immigrants are not major sources of crime, accounting for less than five percent of state prisoners and less than four percent of county-jail inmates in Utah institutions); http://sutherlandinstitute.org/uploads/immigrationJustTheFacts.pdf; http://sutherlandinstitute.org/uploads/immigrationReadingTheTeaLeaves.pdf. There is troubling language in Verdugo where Court did stated that it had never expressly held that "people" includes the undocumented for purposes of Fourth Amendment protection. There is a potentially significant downside risk to the government's Fourth Amendment argument. Thanks to Dan Kesselbrenner.