Criminal Defense of Immigrants


§ 2.28 C. Courts Expect Us To Do It

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Increasingly, the courts are expecting us to protect the immigration status of our clients as we handle the criminal case.  For example, the United States Supreme Court has stated:


Even if the defendant were not initially aware of [possible waiver of deportation under the Immigration and Nationality Act’s prior] § 212(c), competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision’s importance.[25]


Federal courts of appeal are increasingly concluding, in the immigration context, that criminal counsel have the duty to investigate the immigration consequences prior to entry of plea.  For example, in Jideonwo v. INS,[26] the court recognized that plea decisions may often be affected by the immigration consequences of the plea.  The court noted “many states have found that it is a breach of professional responsibility for a defense attorney to fail to discuss the immigration consequences of a plea agreement with a criminal defendant.”[27]


                The Ninth Circuit also recognized that defense counsel is ineffective in failing to warn the defendant of the adverse immigration consequences flowing from a plea:


That an alien charged with a crime involving controlled substances would factor the immigration consequences of conviction in deciding whether to plead or proceed to trial is well-documented.  See Wallace v. Reno (D. Mass. 1998) 24 F.Supp. 2d 104, 110, aff’d, 194 F.3d 279 (1st Cir. 1999); Mojica v. Reno (E.D.N.Y. 1997) 970 F. Supp. 130, 177, aff’d in part, dismissed in part, Henderson v. INS (2d Cir. 1998) 157 F.3d 106.  For example, the district court in Wallace noted that it was widely recognized as a violation of an attorney’s professional duty to his client not to advise him of the immigration consequences of a plea or conviction.  See Wallace, 24 F. Supp. 2d at 110; see also Mojica, 970 F. Supp. at 177; People v. Barocio (Cal. Ct. App. 1989) 264 Cal. Rptr. 573, 578-79.[28]


The Fourth Circuit concluded that retroactive application of AEDPA § 440(d)’s bar on discretionary relief previously afforded by INA § 212(c) to guilty pleas made before the AEDPA’s enactment “would upset reasonable, settled expectations and change the legal effect of prior conduct.”[29]  This assumes that criminal lawyers have made defendants aware, at the time of plea, of the immigration safety of a given disposition, so they have settled expectations that they will not be deported as a result.


                The Ninth Circuit has recognized the unfairness of causing extreme immigration consequences without advance notice to the defendant.  In United States v. Gonzalez,[30] the court held that the district court abused its discretion in denying a prosecution motion for leave to dismiss Count III of an indictment, to which defendant had entered a guilty plea, charging him with carrying a firearm in relation to a drug trafficking crime.  One of the prosecutor’s reasons for attempting to dismiss the charge was to prevent the defendant’s deportation after service of his sentence.  The defendant, because of inadequate assistance of counsel, had not been informed, prior to plea, of the deportation consequences of the conviction.  This led to a concern that the plea agreement had been “unfairly negotiated” “when the defendant lacked full information regarding the consequences.”[31]


                The court found that “due to the unusual circumstances of the defendant’s citizenship status [he was not a U.S. citizen] and the poor assistance rendered by his counsel, Gonzalez was not informed of the possible consequences of his plea — namely that he would be deported when he was released from jail.  The prosecutor expressed concern that the plea agreement was unfairly negotiated, particularly in light of the fact that all of Gonzalez’s codefendants had been informed of possible deportation consequences before they entered into plea agreements.”[32]


            Such a justification represents an appropriate ground for a Rule 48(a) motion, as our decision in United States v. Weber, 721 F.2d 266 (9th Cir. 1983), makes clear.  In Weber, we explicitly held that, even after a defendant has been convicted of a crime, a prosecutor may obtain a Rule 48(a) dismissal based on broad considerations of justice.  Weber, 721 F.2d at 268.  We emphasized that “it is the duty of the United States Attorney not simply to prosecute, but to do justice.”[33]


            Here, the prosecutor sought to dismiss Count III in part because of a desire ‘to do justice’ — that is, he was concerned about the fairness and appropriateness of a plea agreement reached when the defendant lacked full information regarding the consequences.  Such a concern, if held in good faith, is a proper and appropriate reason for dismissing an indictment — at least where the dismissal is not ‘clearly contrary to manifest public interest.’[34]


            Here, the request [for dismissal] was made for reasons that were both proper and appropriate.  Accordingly, we reverse with instructions to grant leave to the prosecution to file the dismissal of Count III.[35]


The federal courts are increasingly expecting us to take all of the clients’ interests, including their immigration interests, into account in representing them in criminal cases.


[25] INS v. St. Cyr, 533 U.S. 289, 323 n.50 (2001).

[26] Jideonwo v. INS, 224 F.3d 692 (7th Cir. 2000).

[27] See, e.g., Jideonwo v. INS, 224 F.3d 692 (7th Cir. 2000); Williams v. State, 641 N.E.2d 44, 48-49 (Ind. App. 1994); People v. Mehmedoski, 565 N.E.2d 735,738 (Ill. App. 1990); see also Wis. Stat. § 971.08(1)(c) (requiring that state trial courts inform criminal defendants of the federal immigration consequences of a guilty plea).

[28] Magana-Pizano v. INS, 200 F.3d 603, 613 (9th Cir. 1999), on remand from United States Supreme Court sub nom. INS v. Magana-Pizano, 119 S.Ct. 1137 (1999).

[29] Tasios v. Reno, 204 F.3d 544, 552 (4th Cir. 2000).

[30] United States v. Gonzalez, 58 F.3d 459 (9th Cir. 1995).

[31] Ibid.

[32] Ibid.

[33] Ibid. (emphases added).

[34] Ibid.

[35] Ibid.