Criminal Defense of Immigrants


§ 11.73 (A)

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(A)  Ineffective Assistance of Counsel for failure to defend the defendant against the immigration consequences of sentence.[428] A sentence can be invalidated not only by a finding of ineffective assistance at sentencing but also during the crucial period prior to sentence.  The Ninth Circuit held the presentencing cooperation period is a critical stage of the criminal process, and obtaining a substantial assistance motion for a downward departure from the government represents a particularly critical point in that process.[429]  It held the district court’s refusal to hold an evidentiary hearing on allegations which, if proved true, would make out such a claim, constitutes reversible error. The court stated:


Not only is cooperation essential to the interests of defendants facing sentencing, it serves the government’s interests by allowing it to command the services of so many defendants with information or connections that are valuable for law enforcement purposes. Given the symbiotic nature of the relationship, it is not surprising that defendants’ attempts to cooperate have become such a central part of criminal procedure. We now acknowledge that reality by recognizing attempted cooperation as a critical stage of the proceeding. As substantial assistance has become the last, best hope of so many defendants, the guarantee of competent counsel must apply to the process of seeking such a recommendation.


[428] See People v. Barocio, 216 Cal.App.3d 99, 264 Cal.Rptr. 573 (1989) (failure to advise concerning former judicial recommendation against deportation constituted ineffective assistance at sentencing stage).

[429] United States v. Leonti, 326 F.3d 1111 (9th Cir. Apr. 24, 2003) (ineffective assistance can arise in sentencing context when counsel failed to effectively assist a defendant awaiting sentencing in his willing efforts to provide cooperation to an interested government).