Post-Conviction Relief for Immigrants

(A)  Affirmative Misadvice.  The argument is strongest if counsel affirmatively misadvised the defendant of the immigration consequences, for example, telling him or her only that s/he “might” be deported, whereas in reality, these drastic consequences inexorably follow the particular conviction.  This disaster can be a particularly unpleasant surprise for the defendant who may have been a Lawful Permanent Resident of the United States, resided here for many years, and have immediate family here including United States citizens. 

The prevailing federal rule is that counsel's misadvice can constitute ineffective assistance of counsel.  The Second Circuit has held defense counsel gave affirmative misadvice when he said that a conviction would not trigger deportation, where in fact it was an aggravated felony triggering mandatory deportation.[164]  A citizen of Brazil was charged with bribing an INS officer in violation of 18 U.S.C. § 201(b)(1)(A) in order to obtain a green card.  Defendant’s attorney advised her to plead guilty and assured her that the immigration consequences could be dealt with, and counsel could likely prevent her deportation after she pleaded guilty.  This advice was incorrect, as bribery of an official was an aggravated felony, and her guilty plea meant nothing could be done to avoid deportation.  When defendant discovered this error she moved to withdraw her guilty plea, but the district court denied her motion.  The Second Circuit reversed on appeal, holding that the district court erred by crediting potential testimony by INS agents it thought the government might present a trial.  The court also found ineffective assistance of counsel for misrepresenting the deportation consequences of the guilty plea, and that had defendant known of  the consequences, she likely would not have pleaded guilty.

            The California Supreme Court summarized the relevant federal authorities in accord with the Second Circuit in holding affirmative misadvice by counsel can amount to ineffective assistance of counsel.[165]  The California Supreme Court, however, expressly did not reach the question whether counsel has any duty to investigate and research the immigration consequences.[166]  It therefore left standing nearly 15 years of California case law starting with Soriano finding ineffective assistance of counsel under such circumstances.  State authorities agree that affirmative misadvice concerning immigration consequences can constitute ineffective assistance of counsel.[167]

[164] United States v. Couto, 311 F.3d 179 (2d Cir. November 15, 2002) (reversing denial of motion to withdraw guilty plea where attorney misadvised defendant that removal could be prevented upon such plea, where the offense of conviction was an aggravated felony requiring virtually automatic deportation).

[165] E.g., 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).

[166] Id. at 251.

[167] Rollins v. State, ___ S.E.2d ___, 2004 WL 46265 (Jan. 12, 2004); Crabbe v. State, 248 Ga.App. 314, 315-16, 546 S.E.2d 65 (2001).