Criminal Defense of Immigrants

The standards of our profession require us to investigate the immigration consequences of criminal cases, advise the clients concerning them, and attempt to prevent them.  The ABA Standards establish the duty of defense counsel to investigate and advise the defendant of the immigration consequences of the plea:[36]

To the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.[37]

The Commentary to this Standard states, in part:

Standard 14-3.2(f) is another new provision.  It requires defense counsel, “sufficiently in advance of the entry of any plea,” to determine and advise the defendant as to “the possible collateral consequences that might ensue from entry of the contemplated plea.”  While the standards always required defense counsel to advise his or her client concerning other considerations “deemed important by defense counsel or the defendant” (Standard 14-3.2(b)), the number and significance of potential collateral consequences has grown to such an extent that it is important to have a separate standard that addresses this obligation . . . .

Given the ever-increasing host of collateral consequences that may flow from a plea of guilty or nolo contendere, it may be very difficult for defense counsel to fully brief every client on every likely effect of a plea in all circumstances.  Courts do not requires such an expansive debriefing in order to validate a guilty plea.  This Standard, however, strives to set an appropriately high standard, providing that defense counsel should be familiar with, and advise defendants of, all of the possible effects of conviction.  In this role, defense counsel should be active, rather than passive, taking the initiative to learn about rules in this area rather than waiting for questions from the defendant, who will frequently have little appreciation of the full range of consequences that may follow from a guilty, nolo or Alford plea.  Further, counsel should interview the client to determine what collateral consequences are likely to be important to a client given the client’s particular personal circumstances and the charges the client faces.  For example, depending on the jurisdiction, it may well be that many clients’ greatest potential difficulty, and greatest priority, will be the immigration consequences of a conviction.  To reflect this reality, counsel should be familiar with the basic immigration consequences that flow from different types of guilty plea, and should keep this in mind in investigating law and fact and advising the client.  Knowing the likely consequences of certain types of offense conduct will also be important.  Defense counsel should routinely be aware of the collateral consequences that obtain in their jurisdiction with respect of certain categories of conduct.  The most obvious such categories are controlled substance crimes and sex offense because convictions for such offense conduct are, under existing statutory schemes, the most likely to carry with them serious and wide-ranging collateral consequences.[38]

The Commentary makes clear that the substance of the rule remains the same as before, simply adding more specifics under the enduring general principle.[39]

                The standards of professional conduct of the National Legal Aid and Defender Association,[40] to which many public defenders’ offices belong, agrees that defense counsel has the duty to investigate, and protect noncitizen defendants against, adverse immigration consequences at several stages of a criminal case.

[36] ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.4 (Defendant to be Advised ) (3d ed. 1999); ABA Standards for Criminal Justice, Standard 14-3.2 (Responsibilities of Defense Counsel) (3d Edition, 1999); ABA Standards for Criminal Justice, Pleas of Guilty, Comment, 75 (2d ed. 1982).  The United States Supreme Court has held that these standards may be applied as guides to determining what is reasonable to require of defense counsel as a component of effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 688 (1984).

[37] ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-3.2(f) (Responsibilities of Defense Counsel).

[38] Ibid. (emphases supplied).

[39] ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.4 (Defendant to be Advised ) (3d ed. 1999); ABA Standards for Criminal Justice, Standard 14-3.2 (Responsibilities of Defense Counsel) (3d Edition, 1999); ABA Standards for Criminal Justice, Pleas of Guilty, Comment, 75 (2d ed. 1982).

[40] The NLADA Standards are available online at: http://www.nlada.org/Defender/Defender_Standards/Defender_Standards [visited March 12, 2006].