Crimes of Moral Turpitude

(B)

Failure to Advise.  In People v. Soriano,[85] a California court held that counsel has an affirmative duty, when counsel is aware that the client is a noncitizen, to investigate and advise the defendant of the exact immigration consequences of a plea prior to its entry.  Some other states also follow this rule.[86] There is less than unanimity on the subject, however.[87] At least 19 states and the ABA now require counsel to inform a noncitizen of the immigration perils prior to entry of plea.[88] Florida now requires such advice by court rule.[89] 

This rule, at least under Soriano, creates both a duty for counsel to advise the defendant of the possible immigration consequences of a conviction, and a duty to engage actually in an investigation of what those consequences could be.  Counsel must, after discovering that the client is a noncitizen, analyze the charges being brought against the defendant to determine whether a conviction under those charges will result in deportation or inadmissibility.  Counsel also has a duty to determine whether the client would be eligible for some form of relief in immigration court following a plea to the charge.  Counsel must then inform the client of the results of this investigation, and give his or her client accurate advice on how to plead in light of the possible immigration consequences.  In addition, since many defendants (over 20% in many states, such as California) are noncitizens, who will suffer terrible immigration consequences unless warned, defense counsel has a duty to inquire of each defendant as to his or her immigration status so as to identify the one in five for whom this is a paramount issue. 

As a greater duty is placed upon counsel in jurisdictions that follow a Soriano-type rule than where only affirmative misadvice results in ineffective assistance, ineffective assistance can be found much more often.  In many cases, defense counsel fails to make the effort to investigate the immigration consequences of a conviction.  Unfortunately, just as with an affirmative misadvice claim, it is often necessary to try to convince the court that something happened off the record.  A defendant’s declaration alone may not be sufficient, and it is always wise to corroborate the defendant as much as possible by independent sources of evidence.  If possible, an attempt should be made to obtain a declaration from the original trial counsel stating that s/he did not investigate the immigration consequences of the conviction.

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

[86] See People v. Pozo, 746 P.2d 523, 527-529 (Colo. 1987), and authorities cited therein; Lyons v. Pearce, 694 P.2d 969, 976-978 (1985); Daley v. State, 487 A.2d 320 (Md. 1985).

[87] See People v. Kadadu, 425 N.W.2d 784, 785-787 (Mich. 1988) (arraying split of authority).  See, e.g., State v. Ginebra, 511 So.2d 960  (Fla. 1987); People v. Huante, 571 N.E. 2d 736, 741-2 (Ill. 1991).

[88] See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001); D. Kesselbrener & L. Rosenberg, Immigration Law and Crimes, Appendix B (2004); People v. Pozo, supra, 746 P.2d at 526 n.4.

[89] Florida Rules of Criminal Procedure, Rule 3.172(c)(viii) (In re Amendments to Florida Rules, 536 So.2d 992, 994).  See Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Waiver of Jury Trial, 103 A.L.R. Fed. 867; Annot., Ineffective Assistance of Counsel: Failure to Seek Judicial Recommendation Against Deportation . . . ., 94 A.L.R. Fed. 868.