Criminal Defense of Immigrants

(B)  Counsel’s Duties With Respect to Immigration Consequences. With respect to immigration consequences, counsel may render ineffective assistance by:

                (1)  failing to research the federal immigration consequences of conviction, and failing to try to secure a non-deportable plea bargain.  See § 2.31, supra.

                (2)  failing to investigate the immigration consequences, and failing to use them as mitigating circumstances during plea bargaining.  See § 2.37, supra.

                (3)  failing to attempt to defend the client against adverse collateral consequences, including adverse immigration consequences, during plea bargaining.  See § 2.40, supra.[9]

                (4)  in some jurisdictions, failing to advise the client of the adverse immigration consequences of a plea prior to plea.  Because of the illogic of the “collateral consequences doctrine,” the basis of the rule that defense counsel can remain silent on the subject of immigration consequences without rendering ineffective assistance, it is expected that this rule will eventually be extended to all jurisdictions.  See § 2.39, supra.

                (5)  failing to consider dispositions that to not involve a conviction.  See § 8.62(D), infra.

[9] Note, Collateral Consequences of Guilty Pleas in the Federal Criminal Justice System, 16 Harv. Civ. Rts. Civ. Lib. L. Rev. 157 (1981).