Criminal Defense of Immigrants

(D)  Obligation of the Court.  Generally, the court need not advise the defendant of the specific immigration consequences of a plea during the plea hearing, since they are not considered “direct” or “penal” consequences of the plea, but rather collateral consequences.  In some contexts, however, there is a good argument the court itself is required to give certain immigration advice to the defendant.  For example, in a proceeding involving a stipulated judicial order of removal, a judge should include an immigration advisement in the court colloquy even where statute or case law does not require it, as suggested by the ABA Standards for Criminal Justice.[101]  Moreover, if the court is aware, for example, because of an immigration hold, that the defendant is ineligible for certain sentence programs, the court should advise the defendant concerning this fact because the sentence programs do constitute direct, penal consequences of the plea.  In some jurisdictions, the court is required to take into account in sentencing the collateral consequences of the plea on the defendant and the defendant’s family.[102]  This might arguably impose a duty on the court to advise the defendant concerning the impact of these collateral consequences on the direct, penal consequence of the length of the sentence for the offense.

[101] ABA STANDARDS FOR CRIMINAL JUSTICE: PLEAS OF GUILTY, Standard 14-1.4(c). See United States v. Del Rosario, 902 F.2d 55, 61 (D.C. Cir. 1990) (Mikva, J., concurring) (“The possibility of being deported can be — and frequently is the most important factor in a criminal defendant’s decision how to plead. . . .  I would hope that the Rules Committee of the Judicial Conference would consider amending Rule 11 [Federal Rule of Criminal Procedure] . . . to require a judge taking a guilty plea to inform an alien that plead­ing guilty might result in deportation at least when the judge is made aware of the alien’s status before accepting his plea”).

[102] See, e.g., California Rules of Court 4.14(b)(5), (6).