Tooby's California Post-Conviction Relief for Immigrants

Since 1987, California defense counsel have been obligated to investigate the federal immigration law, inform the defendant of the actual immigration consequences, and attempt to avoid them if possible.[228]  These duties extend expressly to sentencing.  Trial counsel must investigate the immigration consequences of the sentence imposed, inform the defendant, and make every reasonable effort to obtain a non-deportable sentence. 

For a non‑citizen, the sentencing stage often is a truly crucial arena in which the greatest care is necessary in order to avoid adverse immigration consequences.  This is particularly true now, when many very common felony convictions are transformed into “aggravated felonies,” with the most serious of all adverse immigration consequences, when the defendant receives a sentence imposed of 365 days in custody, as opposed to 364 days.  Thus, in People v. Soriano,[229] defense counsel was found to have rendered ineffective assistance of counsel in failing to research and learn that a 365-day sentence would cause the defendant’s automatic deportation, whereas a 364-day sentence would not.[230]

In People v. Barocio,[231] counsel’s error forfeited the defendant’s opportunity to ask the sentencing judge for a judicial recommendation against deportation (JRAD).  If granted, the JRAD would have prevented his deportation.  In granting relief, the defendant was not required to establish that he definitely would have won that JRAD.  Rather, the court of appeals found it sufficient, to require habeas relief, for him to show that he had a reasonable opportunity to receive that relief.  The court ordered the sentence vacated so he could have that opportunity.

            Depending upon the immigration status of the client and the nature of the criminal conviction, there are many defensive procedures that should be undertaken in order to render effective assistance of counsel.  Counsel must conduct sufficient research into the immigration consequences of the various sentence choices facing the court (or consult with an immigration lawyer) and advise the defendant of the immigration effects of different choices in the sentencing process.[232]

[228]  See In re Resendiz (2001) 25 Cal. 4th 230 (affirmative misadvice concerning immigration consequences can constitute deficient performance for purposes of ineffective assistance of counsel claim); People v. Soriano (1987) 194 Cal.App.3d 1470; People v. Barocio (1989) 216 Cal.App.3d 99; People v. Sandoval (1999) 73 Cal.App.4th 404 (vacated on grant of review; later remanded to court of appeal for reconsideration in light of Resendiz).  In Soriano, defense counsel was found ineffective not solely for a failure to advise, but for a failure to seek a sentence of 364 days, rather than 365.

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

[230] While the Soriano context concerned whether a conviction would be considered a deportable crime involving moral turpitude, with a one-year sentence imposed, it is highly analogous to the current aggravated-felony sentence test for many common offenses.  Ibid.

[231] People v. Barocio (1989) 216 Cal.App.3d 99.

[232] See People v. Soriano, supra, 240 Cal.Rptr. at 336 [“[W]hatever advice his counsel did give him was not founded on adequate investigation of federal immigration law.”]; People v. Barocio, supra.