Crimes of Moral Turpitude

(A)

Affirmative Misadvice.  The strongest ineffective-counsel argument is that counsel affirmatively misadvised the defendant of the exact immigration consequences, for example, telling him or her only that s/he “might” be deported, whereas in reality, the drastic consequence of deportation is mandatory once the plea is entered to an aggravated felony offense.

The prevailing federal rule is that counsel’s misadvice can constitute ineffective assistance of counsel.[80]  This is often the rule at the state level as well.[81] 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.  See § 10.8(B), infra.

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.[82]  Couto did not reach the issue, but discussed it.[83]  The First, Sixth, and Ninth Circuits have declined to reconsider their prior holdings on this point.[84]

[80] 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).

[81] 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).

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

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

[84] 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).