§ 2.38 2. Duty Not to Give Affirmative Misadvice
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We render ineffective assistance of counsel if we affirmatively tell the client something about the immigration situation s/he faces that is not accurate. For example, a lawyer gives inaccurate advice by telling the client only that s/he “might” be deported, where in reality deportation is mandatory. The prevailing federal rule is that counsel’s misadvice can constitute ineffective assistance of counsel.
“[T]he clear consensus is that an affirmative misstatement [by defense counsel] regarding deportation [consequences of a guilty plea] may constitute ineffective assistance.” Circuit and district courts alike agree. “There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable [citations omitted], but, as one court has remarked, we properly may ‘regard those cases as aberrations’.” For example, in United States v. Couto,  the Second Circuit reversed a district court denial of a defendant’s motion to withdraw a guilty plea on the ground defense counsel misrepresented the immigration consequences that would flow from the plea. The court therefore did not need to decide “the question of what effect, if any, recent changes to the Immigration and Nationality Act have on a court’s obligation under Fed. R. Crim. P. 11(c)(1) to inform a defendant of the direct consequences of a guilty plea prior to accepting that plea.” In United States v. Kwan, the Ninth Circuit held that affirmative misadvice by defense counsel concerning the actual immigration consequences of the disposition constituted ineffective assistance of counsel where counsel said deportation was not a serious possibility, but in fact it became a near certainty.
Since this is a matter of federal constitutional law, made binding on the states by the Due Process Clause of the Fourteenth Amendment, it applies in state court as well. State courts, including California, have increasingly found that affirmative misadvice concerning immigration consequences can amount to ineffective assistance of counsel.
The basis for these decisions, both state and federal, is a recognition that “deportation is a drastic measure and at times the equivalent of banishment or exile,” and that criminal convictions often have these “dire consequences” under federal immigration law, which are therefore “material matters” for noncitizen defendants faced with pleading decisions.
This rule flows directly from federal authority that counsel can render ineffective assistance by providing his or her client with misadvice that materially affects the decision to plead guilty. In Hill v. Lockhart, counsel allegedly gave erroneous advice as to a collateral consequence of the plea — parole eligibility. The Supreme Court held that the habeas petitioner could not show prejudice without proving that the incorrect advice had a prejudicial effect on his plea decision, and noted the absence of any special circumstances in that case that would have supported a conclusion that the defendant placed a “particular emphasis” on the parole eligibility date in the making of the plea decision.
 Vega-Gonzalez v. State, 191 Or. App. 587 (2004); State v. Rojas-Martinez, 73 P.3d 967 (Utah App. 2003), cert. granted, 80 P.3d 152 (Utah 2003); see United States v. Couto, 311 F.3d, at 188-192 (finding this argument persuasive).
 United States v. Couto, 311 F.3d 179 (2d Cir. 2002) (defense counsel gave affirmative misadvice by saying that a conviction would not trigger deportation, where in fact it was an aggravated felony triggering mandatory deportation); see also Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Holmes v. United States, 876 F.2d 1545 (11th Cir. 1989); Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995), overruled on other grounds, O’Dell v. Netherland, 95 F.3d 1214, 1222-23 (4th Cir. 1996); Bowers v. Saffle, 216 F.3d 918, 925-26 (10th Cir. 2000); Goodall v. United States, 759 A.2d 1077, 1082 (D.C. App. 2000); Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1999), cert. denied, 497 U.S. 1011 (1999).
 United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995) (emphasis added); United States v. Couto, 311 F.3d 179, 2002 U.S. App. LEXIS 23680 (2d Cir. Nov. 15, 2002) (Rule 32(e) motion to withdraw plea prior to sentence should have been granted on ground defense counsel rendered ineffective assistance in affirmatively misrepresenting to defendant the deportation consequences of a guilty plea).
 See United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985) (reversing denial of foreign national’s petition to vacate his sentence on guilty plea to conspiracy to import marijuana where defense counsel had misinformed him that his guilty plea would not lead to deportation); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979) (although defense counsel does not have an obligation to inform a client of collateral consequences of a plea, when counsel misinforms his client concerning the possibility of deportation and the client relies on that misinformation in entering a plea, the client is deprived of effective assistance of counsel); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970) (“[u]nder appropriate circumstances the fact that a defendant has been misled as to consequence of deportability may render his guilty plea subject to attack”); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995) (defendant received ineffective assistance of counsel when counsel misadvised the defendant regarding sentencing), overruled on another point in O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996).
 Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979), citing United States v. Sambro, 454 F.2d 918, 921-922 (D.C. Cir. 1971); United States v. Parrino, 212 F.2d 919, 921-922 (2d Cir. 1954).
 United States v. Couto, 311 F.3d 179 (2d Cir. Nov. 15, 2002).
 Id. at 181-182.
 United States v. Kwan, 407 F.3d 1005 (9th Cir. May 12, 2005).
 In re Resendiz, 25 Cal.4th 230 (2001); Rollins v. State, 591 S.E.2d 796 (Ga. Jan. 12, 2004); Crabbe v. State, 248 Ga.App. 314, 315-16, 546 S.E.2d 65 (2001).
 See People v. McDonald, 745 N.Y.S.2d 276 (2002) (holding that affirmative misadvice can be ineffective assistance of counsel); In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr.2d 431, 19 P.3d 1171 (2001) (same); see also People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268-269 (1995); People v. Huynh, 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785 (1991); Dugart v. State, 578 So.2d 789 (Fla.App.1991) (ordering evidentiary hearing based on allegation that counsel erroneously informed defendant that defendant would be subject to deportation only after second felony conviction, and in reliance on affirmative misinformation, defendant entered plea of guilty); People v. Correa, 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310-311 (1985) (granting relief where defense counsel said that he did not know what the Immigration Service would do but that in his experience, he did not believe deportation was likely); Lotero v. People, 203 Ill.App.3d 160, 148 Ill. Dec. 507, 560 N.E.2d 1104 (1990) (granting post-conviction relief from plea to drug charge where counsel advised foreign national that guilty plea would not have immigration consequences, and where INS subsequently sought deportation of noncitizen based on this conviction, finding that such erroneous advice with such drastic consequences fell below minimum professional standards of effective assistance of counsel); Re Personal Restraint of Peters, 50 Wash.App. 702, 750 P.2d 643 (1985) (recognizing that affirmative misadvice may amount to ineffective assistance of counsel); People v. Pozo, 746 P.2d 523 (Colo. 1987).
 Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).
 See, e.g., Resendiz, supra, 24 Cal.4th. at 250.
 See Hill v. Lockhart, 474 U.S. 52 (1985).