Post-Conviction Relief for Immigrants

(C)  Relationship to Immigration Consequences of Conviction.  The Ninth Circuit case of United States v. Fuller is instructive with respect to the interplay between the waiver of the right to counsel and the immigration consequences of the conviction.[55]  The defendant was charged with a violation of 18 U.S.C. § 1546(a), use of a false visa.  She entered a guilty plea without benefit of counsel and was sentenced to three years unsupervised probation.  The most important consequence of her uncounseled guilty plea was not the criminal penalty, but was rather the fact that the minor conviction was causing her imminent deportation.[56]  After first finding the trial court failed to engage in the proper inquiries required by the Constitution, the court of appeal concluded it could not find a knowing and intelligent waiver on the record:

We have held that, in an exceptional case, the record may support an uncounseled guilty plea even where the trial court deviates from the comprehensive inquiries ordinarily required.  We have done so only when the deprivation was less significant than in this case, and where circumstances such as age, previous experience with the law, education and other factors supported a finding of knowing waiver of the right to counsel.[57]

            In sum, the plea should be set aside when the record fails to disclose the painstaking and thorough inquiry necessary before a court may accept a waiver of the precious right to counsel.  The need for counsel is particularly acute in the cases of many immigrants, who may not be familiar with the English language or the cultural tradition and court system in use in the United States.[58]

[55] United States v. Fuller, 941 F.2d 993 (9th Cir. 1991).

[56] The defendant in Fuller was actually aware that deportation was a likely result of her guilty plea.  United States v. Fuller, supra, 941 F.2d at 995.  Even so, the court found the waiver of counsel invalid.

[57] United States v. Fuller, supra, 941 F.2d at 996 (emphasis supplied).

[58] See United States v. Gillings, 568 F.2d 1307, 1309 (9th Cir. 1978) (“pro forma answers to pro forma questions” are inadequate to establish waiver of counsel); People v. Hardin, supra (defendant uttered no words except “Yes, sir,” “No, sir” and “Guilty”; other indications of non‑understanding led to conclusion no adequate waiver of counsel); see also People v. Grayson, 8 Cal.App.4th 168, 10 Cal.Rptr.2d 392 (1992).