Criminal Defense of Immigrants

(D)  Ineffective Assistance of Counsel by Providing Affirmative Misadvice Concerning Immigration Consequences.  The prevailing federal rule, which must perforce apply as well in all state courts, holds that a conviction is legally invalid at the time it came into existence if it results from ineffective assistance of counsel in giving affirmative misadvice concerning the immigration consequences of the plea, so long as the error is prejudicial.[365]  This ground of invalidity therefore meets the Pickering-Adamiak test, and is sufficient to erase the immigration consequences of a conviction.  See § 11.4, supra. 

The prevailing federal rule is that counsel’s misadvice can constitute ineffective assistance of counsel.[366]  This is often the rule at the state level as well.[367] However, it is difficult in most cases actually to show that an attorney in fact gave affirmative misadvice to the client, without the cooperation of the original attorney in giving a declaration, as this misadvice often occurs off the record.

Once an attorney gives advice regarding immigration consequences, the information provided must be accurate.  Some courts have rejected the idea that a failure to advise the client concerning the exact immigration consequences of a conviction can constitute ineffective assistance.

Some courts have gone so far as to hold that where a noncitizen has been convicted of an aggravated felony, mandating deportation, the fact that counsel told his client that the conviction may result in deportation is in itself affirmative misadvice, since deportation is effectively mandatory.[368]  Couto did not reach the issue, but discussed it.[369]  The First, Sixth, and Ninth Circuits have declined to reconsider their prior holdings on this point.[370]

[365] United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005) (affirmative misadvice concerning adverse immigration consequences of a plea constitutes ineffective assistance of counsel); see In re Resendiz, 25 Cal.4th 230 (2001) (reviewing federal authorities on this point, and applying them in a state case).

[366] United States v. Couto, 311 F.3d 179 (2d Cir. 2002) (defense counsel gave affirmative misadvice by saying that a conviction would not trigger deportation, where in fact it was an aggravated felony triggering mandatory deportation); see also Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Holmes v. United States, 876 F.2d 1545 (11th Cir. 1989); Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995), overruled on other grounds, O’Dell v. Netherland, 95 F.3d 1214, 1222-23 (4th Cir. 1996); Bowers v. Saffle, 216 F.3d 918, 925-26 (10th Cir. 2000); Goodall v. United States, 759 A.2d 1077, 1082 (D.C. App. 2000); Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1999), cert. denied, 497 U.S. 1011 (1999).

[367] See, e.g., Rollins v. State, 591 S.E.2d 796 (Ga. Jan. 12, 2004); Crabbe v. State, 248 Ga.App. 314, 315-16, 546 S.E.2d 65 (2001).

[368] Vega-Gonzalez v. State, 191 Or. App. 587 (2004); but see State v. Rojas-Martinez, 125 P.3d 930 (Utah Nov. 22, 2005).

[369] United States v. Couto, 311 F.3d at 188-192 (finding such arguments persuasive).

[370] See El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002), cert. denied, 537 U.S. 1024, 123 S.Ct. 535 (Nov. 12, 2002); United States v. Amador-Leal, 276 F.3d 511, 516-17 (9th Cir. 2002), cert. denied, 122 S.Ct. 1946 (2002); United States v. Gonzalez, 202 F.3d 20, 28 (1st Cir. 2000).