Criminal Defense of Immigrants
§ 2.39 3. Duty to Advise
For more text, click "Next Page>"
Whether or not the courts in a particular jurisdiction have yet decided to vacate a conviction for counsel’s failure to warn about, or defend against, adverse immigration consequences is irrelevant for counsel defending noncitizens in the criminal courts. Because the immigration consequences can be so disastrous, counsel must not allow the client to be blindsided by a life sentence to exile, or to suffer other immigration damage, if it can reasonably be avoided.
Because of the importance of these issues, defense counsel must research the federal immigration law as it pertains to the defendant’s situation, and advise the client prior to plea of the exact – not merely the potential – adverse immigration consequences that will flow from the plea.
The Second Circuit noted that a recent decision of the United States Supreme Court supports the view that defense counsel’s duty extends to researching the federal immigration consequences of a proposed plea and advising the defendant of the results:
Moreover, recent Supreme Court authority supports this broader view of attorney responsibility as well. See, e.g., INS v. St. Cyr, 533 U.S. 289, 323 n. 50, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“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.” (emphasis added) (citing Amicus Br. For Nat’l Assoc. Criminal Defense Lawyers et al. at 6-8)); Ibid. at 322 n. 48, 121 S.Ct. 2271 (noting that “the American Bar Association’s Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel ‘should fully advise the defendant of these consequences’ “ (citing ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed.1982))).
Thus, it appears that federal law is migrating on this issue, toward greater recognition of defense counsel’s duty to research federal immigration consequences, give correct advice concerning them, and actually attempt to avoid them.
In People v. Soriano, a California court of appeal held that counsel has an affirmative duty, when counsel is aware that the client is a noncitizen, to investigate and advise the defendant of the exact immigration consequences of a plea prior to its entry. Some other states also follow this rule. There is less than unanimity on the subject, however.
Because at least 20 states and the ABA now require counsel to inform a noncitizen of the immigration perils prior to entry of plea, counsel now must step up to this issue even in jurisdictions that do not yet hold counsel ineffective for failure to do so. The standard of competence has risen on this issue to require it.
The courts that do not yet hold counsel ineffective for failure to advise their clients of these important consequences follow embarrassingly defective reasoning. They start with the premise that because immigration consequences are collateral (i.e., they are not imposed directly by the criminal court), the judge taking the plea need not inform the defendant of them in order to take a knowing and intelligent plea. This premise is greatly undermined, however, in those 20 states in which the Legislature has required the court to inform the defendant of these potential consequences prior to accepting a plea. Even if this premise remains valid, however, the courts following this rule draw the false conclusion that because the court need not do so, therefore counsel need not do so.
This is a non-sequitur. This is silly. A moment’s thought reveals the error of this inference. Does the judge have to file a search motion for the client? Does the judge have to interview eyewitnesses? Does the judge have to research the law pertaining to case? No, no, no. There are a thousand duties counsel has that the judge does not have. It is ridiculous to reason that because the judge doesn’t have to do something, therefore we don’t have to do it either. This false reasoning may be accepted by courts who bend over backwards to rule against our client, but it is not acceptable for us to do so. Because the underpinning of the “collateral consequences” doctrine is so stupid, it is tempting to believe that it is on its way out, at least to the extent we have courts that actually think about what they’re doing and are honest enough to employ solid reasoning.
For example, the California Supreme Court expressly rejected application of the “collateral consequences” doctrine to bar all claims of ineffective assistance of counsel regarding the immigration consequences. In re Resendiz held that the Sixth Amendment right to assistance of counsel is not measured by due process standards, which do not require the trial judge to admonish a defendant of collateral consequences, including the immigration effects, to obtain a knowing and voluntary plea. Rather, claims of ineffective assistance of counsel must be evaluated on a case-by-case basis in light of the “prevailing professional norms.” Thus, the Court found that affirmative misadvice from counsel regarding the immigration consequences of a conviction can rise to constitutionally deficient performance.
 United States v. Couto, 311 F.3d 179, 187-188 (2d Cir. Nov. 15, 2002).
 People v. Soriano, 194 Cal.App.3d 1470 (1987).
 See People v. Pozo, 746 P.2d 523, 527-529 (Colo. 1987), and authorities cited therein; Lyons v. Pearce, 694 P.2d 969, 976-978 (Ore. 1985); Daley v. State, 487 A.2d 320 (Md. 1985).
 See People v. Kadadu, 425 N.W.2d 784, 785-787 (Mich. 1988) (arraying split of authority). See, e.g., State v. Ginebra, 511 So.2d 960 (Fla. 1987); People v. Huante, 571 N.E. 2d 736, 741-2 (Ill. 1991).
 In re Resendiz, 25 Cal.4th 230 (2001).
 The Court observed that the “collateral consequences” doctrine grew out of a “policy-based adjunct to the due process requirement that a court ensure the guilty pleas it accepts are voluntarily given,” while claims of ineffective assistance of counsel invoke the Sixth Amendment Right to Counsel. Id. at 243.
 Ibid., at 246 (quoting Strickland, 466 U.S. at 688).
 Ibid., see also People v. Soriano,194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987) (defense counsel must investigate the particular immigration consequences to the defendant of a plea bargain and advise the client of those consequences prior to entry of the plea).