Criminal Defense of Immigrants


§ 8.45 2. Advice of Possible Immigration Consequences Required by Statute

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A number of states have enacted legislation protecting immigrants from entering guilty pleas in criminal cases in ignorance of the potential adverse immigration consequences.[87]  It may be possible, as in California, to ground a motion on the specific statute violated, or it may be necessary to raise this ground in a motion to withdraw the plea, motion to vacate, or other appropriate form of post-conviction relief.


The court’s failure to deliver the required advice may require the court to vacate the conviction.[88]  Even if the court gives the correct advice required by statute, if the state court judge goes further and adds incorrect information, that may constitute a ground on which the conviction must be vacated.[89]  This ground — violation of a state statute requiring the court to advise the defendant concerning the potential immigration consequences prior to acceptance of a plea — must be distinguished from the judicially created requirement that defense counsel must correctly advise the defendant concerning the actual immigration consequences prior to plea.[90]  See § 2.28, infra.


Different statutes dictate different advisals, but they generally contain some warning identical or similar to the following:


If you are not a citizen of the United States, you are advised that a plea of guilty, a plea of nolo contendere or a plea of no contest for the offense for which you are charged may result in deportation, the exclusion from admission to the U.S., or the denial of naturalization under federal law.[91]


Because of the drastic adverse immigration consequences that often flow from entry of a guilty plea, this legislation requires the trial court, prior to accepting a guilty plea, to notify defendants of the possible adverse immigration consequences.  The following states have such statutes or court rules: California, Connecticut, the District of Columbia, Florida, Georgia, Hawaii, Maryland, Massachusetts, Minnesota, Montana, New Mexico, North Carolina, Ohio, Oregon, Rhode Island, Texas, Washington, and Wisconsin.[92]  New York has weaker protections.[93]


In these jurisdictions, the trial court’s failure to advise the defendant of the possible adverse immigration consequences of a plea, in violation of these statutory notification provisions, may require vacation of the criminal judgment.[94]


Defendants have generally — in the absence of a statute — been unable to vacate convictions on the ground that the court failed to warn them of their possible or actual adverse immigration consequences.  The courts have reasoned that the immigration consequences are considered collateral consequences of a guilty plea, and the traditional rule has been that a court is under no duty to warn a noncitizen of collateral consequences.   A number of federal courts, for example, have declined to vacate convictions based on a claim that the court failed to advise the defendant concerning the adverse immigration consequences of a guilty plea.


Even where no state advisal statute requires the court to give an immigration warning prior to plea, some states’ courts have recognized the duty of defense counsel to advise noncitizen defendants concerning the possible or actual adverse immigration consequences of criminal convictions.[95]  The ABA Standards of Criminal Justice require defense counsel to inform defendants concerning the collateral consequences of pleas, including the immigration consequences.  See Chapter 2, supra.

[87] E.g., California Penal Code § 1016.5 (the conviction must be vacated unless the court informs the defendant, prior to plea, of the possibility of deportation, exclusion, or denial of naturalization).  Florida now requires such advice by court rule.  Florida Rules of Criminal Procedure, Rule 3.172(c)(viii); In re Amendments to Florida Rules, 536 So.2d 992, 994.

[88] See, e.g., Cal. Penal Code § 1016.5(b); Wis. Stat. § 971.08(2); D.C. Code § 16-713; Ohio Rev. Code Ann. § 2943.031(d); Hawaii Stat. Ann. Code § 802E-3; Mass. Gen. L. Ch. 278, § 29D; Ex Parte Cervantes, 762 S.W.2d 577 (Tex. Cr. App. 1988).

[89] See Daramy v. United States, 750 A.2d 552 (App. D.C. 2000); Commonwealth v. Hilaire, 51 Mass. App. 818, 752 N.E.2d 737 (2001), aff’d, 437 Mass. 809, 777 N.E.2d 804 (2002).

[90] See In re Resendiz, 25 Cal.4th 230 (2001); People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987); People v. Pozo, 746 P.2d 523, 527-9 (Colo. 1987); Lyons v. Pearce, 298 Or. 554, 694 P.2d 969, 976-8 (1985); Daily v. State, 61 Md.App. 486, 487 A.2d 320 (1985).

[91] Cal. Penal Code § 1016.5 (West 1995).

[92] Cal. Penal Code § 1016.5 (1995); Conn. Gen. Stat. § 54-1j (West 1994 & Supp. 1999); D.C. Code Ann. § 16-713 (1997); Fla. R. Crim. P. 3.172(c)(viii) (1989); O.C.Ga. Ann. § 17-7-93 (2000); H.R.S. § 802E-2 (West 1994); Me. R. Crim. P. 11(b)(5) (West 2002); Md. Rule 4-242(e)(1999); 725 ILCS 5/113-8 (effective 1/2/04); Mass. Gen. Laws Ann. Ch. 278, § 29D (1992 & Supp. 1999); Minn. R. Crim. Proc. 15.01(1)(c)(d), 15.02(2) (1999); Mont. Code Ann. 46-12-210(1)(f) (1997); Neb. Rev. St. § 29-1819.02 (West 2003); N.M. Dist. Ct. R.Cr.P. 5-303(E)(5) (1990); N.C. Gen. Stat. § 15A-1022(a)(7) (West 1994); Ohio Rev. Code Ann. § 2943.031(A) (Banks-Baldwin 1997); Or. Rev. Stat. § 135.385(2)(d) (1997); R.I. Gen. Laws § 12-12-22 (West 2003); Tex. Crim. P. Code Ann. § 26.13(a)(4) (West 1994); Wash. Rev. Code Ann. § 10.40.200 (West 1995); Wis. Stat. § 971.08(1)(c) (West 1994).

[93] New York has a statutory provision requiring notice to noncitizens at the time of entry of a guilty plea; however, the statute explicitly states that “failure to advise the defendant . . . shall not be deemed to affect the voluntariness of the guilty plea or the validity of the conviction . . . .” N.Y. Crim. Proc. Law § 220.50(7) (Supp. 2001).

[94] See N. Tooby, Post-Conviction Relief for Immigrants § § 5.57, et seq. (2004).

[95] See, e.g., Williams v. State, 641 N.E.2d 44 (Ind. App. 1994) (“attorney’s duties to a client are [not] limited by a bright line between the direct consequences of a guilty plea and those consequences considered collateral”); People v. Soriano, 194 Cal.App. 3d 1470, 240 Cal.Rptr. 328 (1987) (citing ABA standards as evidence of defense counsel’s obligation to advise clients fully about collateral immigration consequences of their guilty pleas); People v. Pozo, 746 P.2d 523 (Colo. 1987) (“attorneys must inform themselves of material legal principles that may significantly impact the particular circumstances of their clients”); Segura v. State, 749 N.E.2d 496 (Ind. 2001).