Criminal Defense of Immigrants

 

(B)  Defense Counsel’s Duty to Advise Client of Immigration Consequences.  While all courts have not yet expressly imposed a duty on defense counsel to investigate the actual immigration consequences and advise the client of them prior to plea, it is increasingly clear that effective counsel will in fact research the exact immigration consequences that attach to conviction of the offense(s) charged, and each likely alternative, so that the case can be defended so as to minimize the immigration effects (as well as the penal consequences) and so the client knows exactly what s/he is getting into when entering a plea, and can take appropriate steps to avoid the consequences if possible.  See § 3.22(G), supra.

 

                This duty is based on the following elements:

 

(1)       The ABA Standards for defense counsel’s representation have long required defense counsel to advise the defendant of important collateral consequences of a proposed disposition.  See § 2.29, supra.[96]

 

(2)       Federal constitutional law provides that defense counsel’s misadvice concerning immigration consequences constitutes ineffective assistance, requiring reversal where prejudice is shown.  See § 2.38, supra.[97]

 

(3)       Judicial decisions in a number of states have held it to be ineffective assistance either (a) to give misadvice concerning immigration consequences, or (b) to fail to research and give correct advice concerning immigration consequences.  See section § § 2.38-2.39, supra.

 

(4)       An increasing number of states have enacted legislation or court rules requiring the court, prior to plea, to advise the defendant of the possible adverse immigration consequences of the disposition.[98]  This legislation is based on the assumption that once this warning about possible immigration consequences has been given, and the client says, “I want to avoid them,” defense counsel will figure out exactly what they are and what is causing them and try to avoid them if possible by negotiations or litigation.

 

(5)       Where adverse immigration consequences for the defendant and innocent family members constitute mitigating facts, that can be used to persuade prosecutor or court to offer a more lenient plea or shorter sentence, traditional ineffective counsel principles require defense counsel to do so.  See § 2.37, supra.

 

Even though many federal courts, and some states, have not yet adopted the full duty to research and advice the defendant concerning the actual immigration consequences, as a practical matter competent counsel will in fact do so even if there is no judicial decision in the jurisdiction requiring them to do so.  See Chapter 2, supra.

 

                Many people focus on the question of accurate immigration advice concerning the immigration consequences of the plea.  This is only part of the obligation.  It is not enough to say, “If you get a sentence imposed of 365 days in custody, your conviction will be an aggravated felony subjecting you to mandatory deportation, mandatory detention, and disqualification from cancellation of removal and virtually all other relief in immigration court.”  Effective counsel must also attempt to prevent the client from receiving a 365-day sentence.  It is not enough to tell the client the axe is coming down on his or her neck, effective counsel must try to prevent it.  See § § 2.36-2.40, infra.

 

Many states have included the duty to research and advise the defendant of the exact immigration consequences prior to plea, either as a result of judicial decision[99] or as an inference from a statutory duty requiring the court to advise the defendant of the possible immigration consequences at the time of plea.  See § 8.45, supra.

 

                For the protection of both attorney and client, it is suggested that the advice to the client concerning the immigration consequences of the specific disposition be reduced to writing, signed by both lawyer and client, and a copy given to the client, the immigration lawyer, and a copy lodged in the criminal defense counsel’s file.

 

                This advice, like all confidential attorney-client communications, is confidential, and should generally not be disclosed to the court or prosecution.

 

[96] ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.4 (Defendant to be Advised ) (3d ed. 1999); ABA Standards for Criminal Justice, Standard 14-3.2(f) (Responsibilities of Defense Counsel) (3d Edition, 1999); ABA Standards for Criminal Justice, Pleas of Guilty, Comment, 75 (2d ed. 1982); see section 1.3, supra.

[97] United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995) (emphasis added); United States v. Couto, 311 F.3d 179 (2d Cir. Nov. 15, 2002) (Rule 32(e) motion to withdraw plea prior to sentence should have been granted on ground defense counsel rendered ineffective assistance in affirmatively misrepresenting to defendant the deportation consequences of a guilty plea). 

[98] California Penal Code § 1016.5; District of Columbia Code 1981 Statute 16-713; Connecticut General Statutes Annotated § 15-1j; Florida Rules of Criminal Procedure, Rule 3.172; Official Code of Georgia Annotated, § 17-7-93(c); Hawaii State Annotated Code § 802E-1 through -3; Maryland Rules of Court, 4-242(e); Massachusetts General Laws Ch. 278, § 29D; Minnesota Rules of Criminal Procedure Rule 15.01; Montana Code Annotated § 46-12-210; New Mexico District Court Rules of Criminal Procedure (2000) Rule 5-303(E); West’s New Mexico Rules of Court, Form 9-406; New York Code of Criminal Procedure § 220.50 Plea; North Carolina General Statutes § 15A-1022(a); Ohio Rev. Code Ann. § 2943.031; Oregon Revised Statutes § 135.385; Revised Code of Washington § 10.40.200; Wisconsin Stat. § 971.08; 971.08.

[99] In People v. Soriano,[100] the California court of appeal held that in order to render effective assistance of counsel, defense counsel must investigate the particular immigration consequences to defendant of a plea bargain and advise the client of those consequences, prior to entry of the plea.  The court held it insufficient for counsel to rely on the general language of the advice the court must give under California Penal Code § 1016.5 that deportation, exclusion, and denial of naturalization may result from the case.