Criminal Defense of Immigrants

(B)  State Advisal Statutes.  Some states have adopted legislation requiring the court to advise the defendant of the possible immigration consequences of a guilty plea prior to its entry.[348]  The conviction may be invalidated if the defendant did not receive the required advice.  Absent legislation, the court’s failure to give such advice does not invalidate the conviction.[349]

Where a conviction is invalidated on the basis of a violation of such a statute, it is likewise legally invalid at the time of the plea — since that is when the statute was violated.  This ground, therefore, also qualifies under Pickering to eliminate the immigration consequences of the conviction.  The Seventh Circuit has held the subjective intent of the state court judge to be irrelevant, so long as a vacatur is granted on a ground of legal invalidity.[350]

In Matter of Adamiak,[351] the Board of Immigration Appeals held that an Ohio conviction vacated under Ohio post-conviction procedure[352] on the ground that the trial court failed to advise the defendant of the possible immigration consequences of a guilty plea, as required by a state advisal statute, is no longer a valid conviction for immigration purposes.

[348] California, Connecticut, the District of Columbia, Florida, Georgia, Hawaii, Massachusetts, Maryland, Minnesota, New Mexico, New York, North Carolina, Ohio, Oregon, Rhode Island, Texas, Washington, and Wisconsin; N. Tooby, Post-Conviction Relief for Immigrants § § 5.57-5.60 (2004); See 66 Interpreter Releases 1093 (Oct. 2, 1989); 66 Interpreter Releases 965 (Aug. 28, 1989).

[349] United States v. Garrett, 680 F.2d 64 (9th Cir. 1982); Steinsvik v. Vinzant, 640 F.2d 949, 956 (9th Cir. 1981); Fruchtman v. Kenton, 531 F.2d 946 (9th Cir. 1976); United States v. Santelises, 509 F.2d 703 (2d Cir. 1975).

[350] Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).

[351] Matter of Adamiak, 23 I. & N. Dec. 878, 879-880 (BIA Feb. 9, 2006).

[352] Ohio Revised Code §   2943.031.