Tooby's California Post-Conviction Relief for Immigrants
§ 7.19 (C)
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(C)
Example. Defense counsel advised an amnesty applicant, who had lived in the U.S. and whose wife was also applying for amnesty, that his plea to a felony involving moral turpitude might result in his deportation, exclusion, or denial of naturalization, but that counsel would attempt to obtain a judicial recommendation against deportation. Was this effective representation?
No. Counsel failed to advise him (a) that the felony would disqualify the client from obtaining permanent residence under the legalization program, (b) that the JRAD has been abolished since November 29, 1990, and (c) that the moral turpitude conviction would render the client inadmissible and therefore unable to immigrate through his wife when she obtained lawful permanent resident status.
Counsel failed to inform him that conviction of a misdemeanor and a sentence of six months or less would enable the client to take advantage of the petty offense exception [169] to the moral turpitude ground of inadmissability and remove all adverse immigration consequences from this conviction. Counsel also failed to advise the client that a sentence of imposition of sentence suspended would not count as jail time under the immigration rules, although any time in custody imposed as a condition of probation would count, and failed to attempt to negotiate a sentence in which "imposition of sentence was suspended" or a sentence of less than six months was imposed. These omissions violated the client's right to accurate immigration advice under Soriano, and required vacating the plea to permit the case to be handled with knowledge of the true immigration consequences of the plea.
