Criminal Defense of Immigrants

Chapter

§ 11.70 (C)

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(C) Ineffective Assistance of Counsel for Failure to Investigate Immigration Consequences. Counsel’s failure to advise the client of the immigration consequences of a plea generally does not invalidate the conviction on the ground that due process was violated because of ineffective assistance of counsel,[353] except in California, where such claims are recognized.[354] Affirmative misadvice by defense counsel concerning immigration consequences, however, constitutes a federal constitutional ground to set aside a conviction.[355] See § 11.70(D), infra.

(1) Failure to Advise. Some states (but not the federal courts) hold that ineffective counsel includes a failure to advise concerning the immigration consequences.[356] Convictions vacated on this ground no longer exist for immigration purposes.

In People v. Soriano,[357] a California court held that counsel has an affirmative duty, when counsel is aware that the client is a noncitizen, to investigate and advise the defendant of the exact immigration consequences of a plea prior to its entry. Some other states also follow this rule.[358] There is less than unanimity on the subject, however.[359] At least 19 states and the ABA now require counsel to inform a noncitizen of the immigration perils prior to entry of plea.[360] Florida now requires such advice by court rule.[361] See Chapter 2, supra.

This rule, at least under Soriano, creates both a duty for counsel to advise the defendant of the possible immigration consequences of a conviction, and a duty to engage actually in an investigation of what those consequences could be. Counsel must, after discovering that the client is a noncitizen, analyze the charges being brought against the defendant to determine whether a conviction under those charges will result in deportation or inadmissibility. Counsel also has a duty to determine whether the client would be eligible for some form of relief in immigration court following a plea to the charge. Counsel must then inform the client of the results of this investigation, and give his or her client accurate advice on how to plead in light of the possible immigration consequences. In addition, since many defendants (over 20% in many states, such as California) are noncitizens, who will suffer terrible immigration consequences unless warned, defense counsel has a duty to inquire of each defendant as to his or her immigration status so as to identify the one in five for whom this is a paramount issue.

As a greater duty is placed upon counsel in jurisdictions that follow a Soriano-type rule than where only affirmative misadvice results in ineffective assistance, ineffective assistance can be found much more often. In many cases, defense counsel fails to make the effort to investigate the immigration consequences of a conviction. Unfortunately, just as with an affirmative misadvice claim, it is often necessary to try to convince the court that something happened off the record. A defendant’s declaration alone may not be sufficient, and it is always wise to corroborate the defendant as much as possible by independent sources of evidence. If possible, an attempt should be made to obtain a declaration from the original trial counsel stating that s/he did not investigate the immigration consequences of the conviction.

(2) Failure to Investigate and Propose Less Harmful Disposition. Some states, such as California, also recognize a failure to defend ground of ineffective assistance, for example, where counsel pleads the client to possession for sale of a controlled substance (an aggravated felony), instead of the greater offense of offer to transport (neither an aggravated felony nor a controlled-substances conviction in the Ninth Circuit).[362] Some federal courts are beginning to recognize this ground.[363] Counsel in other states can argue for this extension of the law. Convictions vacated on this ground no longer exist for immigration purposes.

(3) Failure to Mitigate. An additional argument of ineffective assistance of counsel is that even though immigration consequences may be collateral to the criminal case, criminal defense counsel has always had the responsibility to investigate all facts connected with the case (even collateral facts) in search of exculpatory or mitigating circumstances that can be used in bargaining to reduce the penal seriousness of the plea of conviction or used at sentencing to reduce the length of the sentence. This is traditional ineffective assistance, since defense counsel has always had the responsibility to attempt to reduce the length of the potential or actual sentence, which is a direct penal consequence, not a collateral consequence. Counsel therefore should investigate and discover the immigration disaster that will flow from a 365-day sentence, for example, and attempt to use that mitigating fact to obtain a shorter sentence. The United States Supreme Court has held that a sentence even one day shorter is sufficient to constitute prejudice from ineffective counsel at sentence.[364]

[353] United States v. Fry, 322 F.3d 1198 (9th Cir. Mar. 18, 2003) (defense counsel’s failure to advise a defendant of collateral immigration consequences of criminal conviction does not violate the Sixth Amendment right to effective assistance of counsel). This case does not undercut the argument that counsel’s mistaken advice, rather than a mere failure to advice, can constitute ineffective assistance of counsel. See In re Resendiz, 25 Cal.4th 230 (2001) (citing federal authorities); United States v. Banda, 1 F.3d 354 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357 (10th Cir. 1992); United States v. Del Rosario, 902 F.2d 55 (D.C. Cir. 1990); United States v. George, 869 F.2d 333 (7th Cir. 1989); United States v. Yearwood, 863 F.2d 6 (4th Cir. 1988); but see United States v. Mora-Gomez, 875 F.Supp. 1208 (E.D. Va. 1995) (counsel’s misstatement of deportation consequences of plea may constitute ineffective assistance of counsel invalidating the conviction). See also Steven D. Heller, Criminal Convictions and Aliens: Preventing the “Collateral Consequence” of Deportation, 94-10 Immigration Briefings (Oct. 1994); Lory Rosenberg & Kenneth H. Stern, Ineffective Assistance of Counsel: An Antidote for the Convicted Alien, 65 Interpreter Releases 529 (May 23, 1988). See generally Gordon § 4.01[4].

[354] In re Resendiz, 25 Cal.4th 230 (2001) (rejecting the collateral consequences argument and holding that counsel renders ineffective assistance by affirmatively misadvising the defendant of the immigration effects of a plea).

[355] See N. Tooby, Post-Conviction Relief for Immigrants § 6.18 (2004).

[356] People v. Soriano, 194 Cal.App. 3d 1470 (1987); State v. Paredez, 136 N.M. 533, 101 P.3d 799 (Aug. 31, 2004).

[357] People v. Soriano, 194 Cal.App.3d 1470 (1987).

[358] See People v. Pozo, 746 P.2d 523, 527-529 (Colo. 1987), and authorities cited therein; Lyons v. Pearce, 694 P.2d 969, 976-978 (1985); Daley v. State, 487 A.2d 320 (Md. 1985).

[359] See People v. Kadadu, 425 N.W.2d 784, 785-787 (Mich. 1988) (arraying split of authority). See, e.g., State v. Ginebra, 511 So.2d 960 (Fla. 1987); People v. Huante, 571 N.E. 2d 736, 741-2 (Ill. 1991).

[360] See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001); People v. Pozo, supra, 746 P.2d at 526 n.4.

[361] Florida Rules of Criminal Procedure, Rule 3.172(c)(viii) (In re Amendments to Florida Rules, 536 So.2d 992, 994). See Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Waiver of Jury Trial, 103 A.L.R. Fed. 867; Annot., Ineffective Assistance of Counsel: Failure to Seek Judicial Recommendation Against Deportation . . . ., 94 A.L.R. Fed. 868.

[362] People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (2004).

[363] United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005)(affirmative misadvice case; once law changed, so advice had become misadvice, counsel erred by failing to defend his client against adverse immigration consequences of the plea by failing to seek to negotiate a non-deportable disposition, failing to file a motion to withdraw the plea, and failing to argue the immigration consequences to the sentencing court in an effort to obtain a sentence of less than one year).

[364] Glover v. United States, 531 U.S. 198, 205 (2001).

Updates

POST CON RELIEF - GROUNDS - VIENNA CONVENTION
Medellin v. Texas, ___ U.S. ___, 128 S.Ct. 1346 (Mar. 25, 2008) (neither an International Court of Justice case, Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12, nor a memorandum issued by the President of the United States constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions, affirming dismissal of a habeas petition in a death penalty case raising a claim that petitioner was not informed of his Vienna Convention right to notify the Mexican consulate of his detention).

POST CON RELIEF - GROUNDS - STATE ADVISAL STATUTES
As of March, 2008, 28 states have adopted court rules or statutes that require the court, at plea, to advise the defendant concerning possible immigration consequences. Alas.R.Crim.P. 11(c)(3)(C); Arizona Rules of Court, rule 17.2(f) (2004); Ark. Rules of Court, rule 17.2(f)(2004); Cal. Penal Code 1016.5 (West 1995); Conn. Gen. Stat. Ann. 54-1j (West 1994); D.C. Code Ann. 16-713 (West 1994); Fla. R. Crim. P. 3.172(8) (West 1995); Ga. Code Ann. 17-7-93 (1997); Haw. Hawaii Stat. Ann. 802E(1), (2), (3) (West 1994); Id. Crim. Rule. 11(d)(1); Ill. Comp. Stat. 5/113-8 (2006); Iowa R. Crim. Proc. 2.8(2)(b)(2005); Me. R. Crim. P. 11(b)(5) (West 2002); Md. R. 4-242(e) (Michie 2001); Mass. Gen. Laws Ann. ch. 278, 29D (West 1994); Minn. Rule Crim. Proc. 15.01(10)(c) (2000); 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) (1992); N.Y. Crim. Proc. Law 220.50 (7) (McKinney 2001 Cum. Supp. Pamphlet); N.C. Gen. Stat. 15A-1022 (a)(7) (West 1994); Ohio Rev. Code Ann. 2943.031 (West 1989); Ore. Rev. Stat. 135.385 (2)(d) (1997); R.I. Gen. Laws 12-12-22 (West 2003); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (West 1994); 13 S.A. 6565; Wash. Rev. Code Ann. 10.40.200 (West 1995); Wis. Stat. 971.08(1)(c), (2) (West 1994).

Lower Courts of Eleventh Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO ADVISE CONCERNING FOREIGN IMMIGRATION CONSEQUENCES
United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995) (defense counsel's failure to advise defendant before plea of adverse Nigerian immigration consequences of plea did not constitute ineffective assistance of counsel).