Criminal Defense of Immigrants


§ 2.40 4. Duty to Defend Against Collateral Consequences

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A somewhat separate duty of counsel is not only to investigate and advise our clients concerning the adverse immigration consequences of the case, but actually to defend the client against them.  A California court of appeal held that counsel also has a duty to defend the noncitizen against a plea that would have adverse immigration consequences.[83]  Thus, if the investigation reveals that a conviction of a certain charge will cause the defendant to be an aggravated felon, causing an immigration disaster, counsel has a duty to assist his or her client in attempting to obtain an alternative disposition that would avoid these disastrous consequences.  The Ninth Circuit agrees.[84] 


                A common example would be where the defendant is convicted of a theft offense and is facing one year or more in custody.  This offense is both a crime involving moral turpitude and (with a one-year sentence imposed) an aggravated felony.  Under Bautista, counsel has a duty to try to obtain an alternative disposition that would at least not be an aggravated felony, and preferably not even a crime of moral turpitude.  A sentence of 364 days, rather than a year, would keep the theft offense from becoming an aggravated felony.[85]  Even better, however, would be a plea to burglary (entry into a building for the purpose of committing theft or any felony), with a sentence of 364 days or, preferably, 180 days or less.  If the defendant has been admitted to the United States, this plea will avoid deportation as a noncitizen convicted of a crime involving moral turpitude.[86]  If the defendant is an illegal entrant, or wants to travel outside the United States, the plea to misdemeanor burglary with a sentence imposed of 180 days or less will keep him or her from being inadmissible to the United States, as long as s/he has committed only one crime, because of the Petty Offense Exception.[87]  A plea to simple trespass, if possible, would avoid any immigration consequences.


                Part of making a Bautista-like claim is the need to demonstrate prejudice, i.e., that it is reasonably likely that the court and/or prosecution would have been willing to agree to an alternative immigration-safe disposition.  Luckily, in most cases, there are immigration-safe alternative pleas that would result in the same level of punishment, or even greater punishment.  For example, while a conviction of simple battery of a spouse will have a number of adverse immigration consequences, a plea to a violation of California Penal Code § 136.1(b), dissuading a witness, which is a strike under California’s three strikes laws, should have no immigration effect.  In such cases, it is likely that the court and/or prosecution would have been willing to cooperate in arranging a plea to a more serious offense.


                Another benefit to a Bautista claim is that the ineffective assistance occurred in the open, rather than in a private attorney-client conversation.  Defense counsel should have attempted to negotiate the safe disposition openly with the prosecution, and should have argued for a safe sentence during the sentence hearing.  Therefore, it is far easier to prove this claim than to prove a mere failure to advise, or affirmative misadvice, which occurs in a private attorney-client conference.  Counsel’s error will be clear from the plea and/or sentencing transcripts.


                Although the failure to defend argument is mainly applicable in those jurisdictions that also follow the Soriano rule, this rule also applies even where the affirmative-misadvice standard is followed.  Even if counsel advised the defendant correctly of the exact immigration consequences of the disposition (e.g., that a sentence of 365 days would result in mandatory deportation), counsel also has the duty to attempt to avoid that result by arguing for a shorter sentence.[88]


[83] People v. Bautista, 115 Cal.App.4th 229 (2004).

[84] United States v. Kwan, 407 F.3d 1005 (9th Cir. May 12, 2005).

[85] See INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[86] See Safe Havens, § 9.33.

[87] See § 20.29, infra. 

[88] See United States v. Kwan, supra.