Criminal Defense of Immigrants

(A)  In General.  While avoiding immigration consequences is the focus of this work, it is very important to bear in mind that a criminal conviction can have other important collateral consequences as well.  The concept of “collateral consequences” has come to mean, in the criminal law, a consequence of a conviction that is triggered by the existence of the conviction but that is not imposed directly by the sentencing court.[3]  This doctrine can have important effects on the likelihood of obtaining post-conviction relief from the immigration consequences of a conviction, since prosecutors can argue that the courts should

categorically bar petitioner’s ineffective assistance claim as based on a “collateral” consequence of his criminal conviction. A defense lawyer’s giving erroneous advice to a defendant about immigration consequences cannot violate the pleading defendant’s right to the effective assistance of counsel, reasons the Attorney General, because knowledge of immigration consequences is not a prerequisite to a determination that the plea was entered voluntarily. [4]

Courts giving thoughtful analysis to this question invariably conclude that the duties of defense counsel are very different from those of the court, so there is no reason to create an exception to the rules relating to ineffective assistance of counsel merely because the court does not have to warn the defendant about the collateral consequences of a conviction.  See Chapter 2, supra.

[3] See In re Resendiz, 25 Cal.4th 230, 242, 105 Cal.Rptr. 2d 431 (2001).

[4] In re Resendiz, 25 Cal.4th 230, 242, 105 Cal.Rptr. 2d 431 (2001).