Criminal Defense of Immigrants


§ 2.37 1. Duty to Investigate and Use Mitigating Facts

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Even in jurisdictions that do not recognize claims of ineffective assistance of counsel for failure to advise a client concerning the actual immigration damage a plea will cause, defense counsel has a bedrock duty to investigate all facts closely and openly connected with the case – “collateral” or not – seeking mitigating facts that can be used in plea bargaining or during sentencing to obtain a plea to a less serious offense, or a shorter sentence.  This general duty therefore includes, in the case of a foreign national defendant, the duty to investigate the immigration consequences of various dispositions and to present the pending immigration disaster to the prosecution and court as a mitigating factor to consider in lessening the seriousness of the offense of conviction or the length of the sentence.  This argument is supported by numerous analogous cases.[56] 


                This claim is not defeated by the “collateral consequences” doctrine that is the majority rule in federal courts and in several states.  Even if immigration consequences are collateral consequences, defense counsel still has a long-established duty to investigate mitigating facts wherever they may be found, and to use them to attempt to get a shorter sentence or a plea to a less serious offense.  These latter consequences are direct penal consequences, not collateral consequences, and the collateral consequences doctrine therefore does not excuse counsel’s failure to attempt to achieve a shorter sentence.


                Defense counsel has always had the obligation to investigate the case in general, and attempt to discover mitigating facts of whatever sort that can be used to try to obtain a better plea-bargain and shorter sentence.[57]  Counsel must learn of all available sentencing alternatives “which may be of assistance in a plan for meeting the needs of the defendant.  Such preparation should also include familiarization with the practical consequences of different sentences . . . .”[58]  Failure to do so can constitute ineffective assistance, where prejudice is shown.

                The Supreme Court has held that ineffective assistance of counsel can be shown where there is a reasonable probability the defendant would have received a sentence even one day shorter in length.[59]  Therefore, ineffective assistance can be shown where counsel failed to present the fact that a 365-day sentence will result in making a noncitizen deportable as an aggravated felon, causing separation from home and family, while a sentence of 364 days would avoid an aggravated-felony ground of deportation and at least allow the noncitizen to apply for some form of relief.


        Even in jurisdictions that do not recognize counsel’s obligation to try to protect the client’s immigration status, defense counsel must as always investigate the case to discover all mitigating circumstances useful in persuading the prosecution or court to agree to a plea bargain to a lesser offense, or lesser sentence.  As the Supreme Court held in Strickland v. Washington,[60] counsel must, at a minimum, conduct a reasonable investigation enabling him or her to make informed decisions about how best to represent the client.[61]  This investigation will often reveal the mitigating fact that terrible immigration results (such as permanent banishment) will befall a defendant who enters a certain plea, or receives a certain sentence, but which would be avoided if the defendant entered a lesser plea or received a lesser sentence.  In these cases, counsel may render ineffective assistance by failing to investigate the case, discover these mitigating facts, and present them to the prosecution and court in an effort to obtain a plea to a lesser offense or a shorter sentence.  The consequences of this failure cannot be evaded by a “collateral consequences” argument, since a plea to a lesser offense or a shorter sentence are classic examples of direct penal consequences.


                Therefore, this legal area is now as integral to competent criminal defense as search and seizure law, perhaps more so, since immigration issues may arise in one fifth or more of all criminal cases.


[56] See N. Tooby, Post-Conviction Relief for Immigrants § § 6.24-6.26 (2004).

[57] Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000) (effective counsel must investigate and present available mitigating evidence at sentencing, including evidence of social history); Karis v. Calderon, 283 F.3d 1117 (9th Cir. Mar. 18, 2002) (prejudicial ineffective assistance found where counsel failed to investigate and present highly relevant information of abusive childhood; “reasonable probability” existed that jury would find information important in understanding root of petitioner’s criminal behavior culpability); Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (failure to present mitigating evidence at sentencing cannot be a strategic, tactical decision where counsel fails to investigate).

[58] ABA Standards Relating to Sentencing Alternatives and Procedures § 5.3(f)(i)(1968).

[59] Glover v. United States, 531 U.S. 198, 205 (2001).

[60] Strickland v. Washington, 466 U.S. 668, 691 (1984).

[61] See also Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir. 1992) (vacating conviction); 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).