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.[222]  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 noncitizen, 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,[223] 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.[224]

 

The immigration consequences of a criminal conviction may often be far more serious and enduring than the penal consequences.  This truth is leading an increasing number of jurisdictions to recognize that effective criminal defense counsel must defend against the adverse immigration consequences, as well as the criminal consequences, of criminal convictions.[225]  Federal law does not yet generally require advice by counsel concerning “collateral consequences,” such as immigration consequences,[226] but misadvice by counsel of the immigration consequences of criminal dispositions can constitute ineffective assistance.

“[T]he clear consensus is that an affirmative misstatement [by defense counsel] regarding deportation [consequences of a guilty plea] may constitute ineffective assistance.”[227]  Circuit and district courts alike agree.[228]  “There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable [citations omitted], but, as one court has remarked, we properly may ‘regard those cases as aberrations’.”[229]

 

For example, in United States v. Couto, [230] the Court of Appeals reversed a district court denial of a defendant’s motion to withdraw a guilty plea on the ground defense counsel misrepresented the immigration consequences that would flow from the plea.  The court therefore did not need to decide “the question of what effect, if any, recent changes to the Immigration and Nationality Act have on a court’s obligation under Fed. R. Crim. P. 11(c)(1) to inform a defendant of the direct consequences of a guilty plea prior to accepting that plea.”[231]

 

The court noted that a recent decision of the United States Supreme Court supports the even broader view that defense counsel’s duty extends to researching the federal immigration consequences of a proposed plea and advising the defendant of the results:

Moreover, recent Supreme Court authority supports this broader view of attorney responsibility as well.  See, e.g., INS v. St. Cyr, 533 U.S. 289, 323 n. 50, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)  (“Even if the defendant were not initially aware of [possible waiver of deportation under the Immigration and Nationality Act's prior] § 212(c), competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision's importance.” (emphasis added) (citing Amicus Br. For Nat'l Assoc. Criminal Defense Lawyers et al. at 6-8)); Ibid. at 322 n. 48, 121 S.Ct. 2271  (noting that “the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel 'should fully advise the defendant of these consequences' ” (citing ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed.1982))).[232]

 

Thus, it appears that federal law is migrating on this issue, and moving toward greater recognition of defense counsel’s duty to research federal immigration consequences, give correct advice concerning them, and actually attempt to avoid them.

 

Additionally, state courts, including California,[233] have increasingly found that affirmative misadvice concerning immigration consequences can amount to ineffective assistance of counsel.[234]

The basis for these decisions, both state and federal, is a recognition that “deportation is a drastic measure and at times the equivalent of banishment or exile,”[235] and that criminal convictions often have these “dire consequences” under federal immigration law, which are therefore “material matters” for noncitizen defendants faced with pleading decisions.[236]

 

This rule flows directly from federal authority that counsel can render ineffective assistance by providing his or her client with misadvice that materially affects the decision to plead guilty.[237]  In Hill v. Lockhart, counsel allegedly gave erroneous advice as to a collateral consequence of the plea — parole eligibility.  The Supreme Court held that the habeas petitioner could not show prejudice without proving that the incorrect advice had a prejudicial effect on his plea decision, and noted the absence of any special circumstances in that case that would have supported a conclusion that the defendant placed a “particular emphasis” on the parole eligibility date in the making of the plea decision.[238]

 

            Recently, however, the California Supreme Court expressly rejected application of the “collateral consequences” doctrine to bar all claims of ineffective assistance of counsel regarding the immigration consequences.[239]  In re Resendiz held that the Sixth Amendment right to assistance of counsel is not limited by due process standards, which do not require the trial judge to admonish a defendant concerning the collateral consequences, including the immigration effects, in order to obtain a knowing and voluntary plea.[240]  Rather, claims of ineffective assistance of counsel must be evaluated on a case-by-case basis in light of the “prevailing professional norms.”[241]  Thus, the Court found that affirmative misadvice from counsel regarding the immigration consequences of a conviction can rise to constitutionally deficient performance.[242] 

 

            Whether or not the courts in a particular jurisdiction have yet decided to vacate a conviction for counsel's failure to warn about, or defend against, adverse immigration consequences is irrelevant for counsel defending noncitizens in the criminal courts.  Because the immigration consequences can be so disastrous, counsel must not allow the client to be blindsided by a life sentence to exile, or to suffer other immigration damage, if it can reasonably be avoided.

 

Moreover, the ABA Standards establish the duty of defense counsel to investigate and advise the defendant of the immigration consequences of the plea.[243]  Standard 14-3.2, Responsibilities of Defense Counsel, states in pertinent part:

 

(f)  To the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.

 

The Commentary to this Standard states, in part:

 

Standard 14-3.2(f) is another new provision.  It requires defense counsel, “sufficiently in advance of the entry of any plea,” to determine and advise the defendant as to “the possible collateral consequences that might ensue from entry of the contemplated plea.”  While the standards always required defense counsel to advise his or her client concerning other considerations “deemed important by defense counsel or the defendant” (Standard 14-3.2(b)), the number and significance of potential collateral consequences has grown to such an extent that it is important to have a separate standard that addresses this obligation . . . .

 

Given the ever-increasing host of collateral consequences that may flow from a plea of guilty or nolo contendere, it may be very difficult for defense counsel to fully brief every client on every likely effect of a plea in all circumstances.  Courts do not requires such an expansive debriefing in order to validate a guilty plea.  This Standard, however, strives to set an appropriately high standard, providing that defense counsel should be familiar with, and advise defendants of, all of the possible effects of conviction.  In this role, defense counsel should be active, rather than passive, taking the initiative to learn about rules in this area rather than waiting for questions from the defendant, who will frequently have little appreciation of the full range of consequences that may follow from a guilty, nolo or Alford plea.  Further, counsel should interview the client to determine what collateral consequences are likely to be important to a client given the client's particular personal circumstances and the charges the client faces.  For example, depending on the jurisdiction, it may well be that many clients' greatest potential difficulty, and greatest priority, will be the immigration consequences of a conviction.  To reflect this reality, counsel should be familiar with the basic immigration consequences that flow from different types of guilty plea, and should keep this in mind in investigating law and fact and advising the client.  Knowing the likely consequences of certain types of offense conduct will also be important.  Defense counsel should routinely be aware of the collateral consequences that obtain in their jurisdiction with respect of certain categories of conduct.  The most obvious such categories are controlled substance crimes and sex offense because convictions for such offense conduct are, under existing statutory schemes, the most likely to carry with them serious and wide-ranging collateral consequences.[244]

 

            Therefore, under the past and current ABA Standards, defense counsel is required to investigate the collateral consequences, including the immigration consequences, of criminal cases and advise the client prior to plea.  While this standard is newly published, the commentary makes clear that the substance of the rule remains the same as before, simply adding more specifics under the enduring general principle.[245]

 

            It is therefore counsel's duty to investigate the exact immigration consequences faced by the client, and not merely to inform the client of them, but to handle the case so as to minimize the adverse immigration consequences.

 

      Even in jurisdictions that do not yet recognize this obligation of counsel, defense counsel must, as always, investigate the case to discover all mitigating circumstances useful in persuading the prosecution or court to agree to a plea bargain to a lesser offense, or lesser sentence.  As the Supreme Court held in Strickland v. Washington,[246] counsel must, at a minimum, conduct a reasonable investigation enabling him or her to make informed decisions about how best to represent his or her client.[247]  This investigation will often reveal the mitigating fact that terrible immigration results (such as permanent banishment) will befall a defendant who enters a certain plea, and receives a certain sentence, but would be avoided if the defendant entered a lesser plea or received a lesser sentence.  In these cases, counsel may render ineffective assistance by failing to investigate the case, discover these mitigating facts, and present them to prosecution and court in an effort to obtain a plea to a lesser offense or a shorter sentence.  The consequences of this failure of counsel cannot be evaded by a “collateral consequences” argument, since a plea to a lesser offense or a shorter sentence are classic examples of direct penal consequences.

In People v. Barocio,[248] 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.[249]

 

[222] See In re Resendiz, 25 Cal. 4th 230 (2001) (affirmative misadvice concerning immigration consequences can constitute deficient performance for purposes of ineffective assistance of counsel claim); People v. Soriano, 194 Cal.App.3d 1470 (1987); People v. Barocio, 216 Cal.App.3d 99 (1989); People v. Sandoval, 73 Cal.App.4th 404 (1999) (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.

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

[224] 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.

[225] In re Resendiz, 25 Cal.4th 230 (2001); People v. Pozo, 746 P.2d 523, 527‑529 (Colo. 1987), and authorities cited therein; Lyons v. Pearce, 298 Or. 554, 694 P.2d 969, 976‑978 (1985); see Daily v. State, 61 Md.App. 486, 487 A.2d 320 (1985).  See Immigration Law And Crimes, § 4.3.  There is less than unanimity on the subject.  See People v. Kadadu, 169 Mich.App. 278, 425 N.W.2d 784, 785‑787 (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); Edwards v. State, 393 So.2d 597 (Fla. App.), review denied, 402 So.2d 613 (Fla. 1981); but see State v. Malik, 680 P.2d 770 (Wash. App. 1984) (no ineffective assistance of counsel where defense counsel informed defendant of consequences and advised defendant to obtain immigration counsel).  At least ten states have now enacted statutes in order to ensure that a noncitizen is told of the immigration perils prior to entry of plea.  See Immigration Law And Crimes, Appendix B; People v. Pozo, supra, 746 P.2d at 526 n.4.  Florida now requires such advice by court rule.  (Florida Rules of Criminal Procedure, Rule 3.172(c)(viii), In re Amendments to Florida Rules, 536 So.2d 992, 994.)  Texas Code of Criminal Procedure, Article 26.13(a)(iv) requires the court to warn the defendant of the potential immigration consequences of deportation, exclusion, or denial of naturalization.  Failure to do so requires vacating the conviction.  Ex Parte Cervantes, 762 S.W.2d 577 (Tex. Cr. App. 1988).  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.

[226] United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Dir. 1990) (failure of counsel to advise client of immigration consequences prior to plea does not constitute ineffective counsel).  The court confused the right to competent advice from counsel (which can and should include “collateral consequences”) with the lack of any right to such advice from the court (which need not do so under Federal Rule of Criminal Procedure 11).  See also United States v. Sanchez‑Guzman, 744 F.Supp. 997, 1001 (E.D. Wash. 1990); Santos v. Kolb, 880 F.2d 941, 944 (7th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990).  But see Stradler v. Garrison, 611 F.2d 61 (4th Cir. 1979).  See generally Immigration Law And Crimes, § 4.2(a)(4).  See also Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Guilty Plea — Federal Cases, 90 A.L.R. Fed. 748.

[227] United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995) (emphasis added); United States v. Couto, 311 F.3d 179, 2002 U.S. App. LEXIS 23680 (2d Cir. Nov. 15, 2002) (Rule 32(e) motion to withdraw plea prior to sentence should have been granted on ground defense counsel rendered ineffective assistance in affirmatively misrepresenting to defendant the deportation consequences of a guilty plea).

[228] See United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985) (reversing denial of foreign national’s petition to vacate his sentence on guilty plea to conspiracy to import marijuana where he partly alleged that in reply to specific question defense counsel had misinformed him that his guilty plea would not lead to deportation); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir.1979) (holding that although defense counsel does not have obligation to inform a client of collateral consequences of a plea, when counsel misinforms his client concerning the possibility of deportation and the client relies on that misinformation in entering a plea, the client is deprived of effective assistance of counsel); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970) (“[u]nder appropriate circumstances the fact that a defendant has been misled as to consequence of deportability may render his guilty plea subject to attack”); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona-Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), aff’d, 831 F.2d 296 (6th Cir. 1987); see also Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995) (court vacated plea, finding defendant received ineffective assistance of counsel when counsel misadvised the defendant regarding sentencing), overruled on another point in O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996). 

[229] Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979), citing United States v. Sambro, 454 F.2d 918, 921-922 (D.C. Cir. 1971); United States v. Parrino, 212 F.2d 919, 921-922  (2d Cir. 1954).

[230] United States v. Couto, 311 F.3d 179 (2d Cir. Nov. 15, 2002).

[231] Ibid. at 181-182.

[232] Ibid., at 187-188.

[233] In re Resendiz, 25 Cal.4th 230 (2001).

[234] See People v. McDonald, 745 N.Y.S.2d 276 (2002) (holding that affirmative misadvice can be ineffective assistance of counsel); In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr.2d 431, 19 P.3d 1171 (2001) (same); see also People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268-269 (1995); People v. Huynh, 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785 (1991); Dugart v. State, 578 So.2d 789 (Fla.App.1991) (ordering evidentiary hearing based on allegation that counsel erroneously informed defendant that defendant would be subject to deportation only after second felony conviction, and in reliance on affirmative misinformation, defendant entered plea of guilty); People v. Correa, 108 Ill.2d 541,  92 Ill.Dec. 496, 485 N.E.2d 307, 310-311 (1985) (granting relief where defense counsel said that he did not know what the Immigration Service would do but that in his experience, he did not believe deportation was likely); Lotero v. People, 203 Ill.App.3d 160, 148 Ill. Dec. 507, 560 N.E.2d 1104 (1990) (granting post-conviction relief from plea to drug charge where counsel advised foreign national that guilty plea would not have immigration consequences, and where INS subsequently sought deportation of noncitizen based on this conviction, finding that such erroneous advice with such drastic consequences fell below minimum professional standards of effective assistance of counsel); Re Personal Restraint of Peters, 50 Wash.App. 702, 750 P.2d 643 (1985) (recognizing that affirmative misadvice may amount to ineffective assistance of counsel); People v. Pozo, 746 P.2d 523 (Colo. 1987).

[235] Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948).

[236] See, e.g., Resendiz, supra. 24 Cal.4th. at 250.

[237] See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

[238] Ibid.

[239] In re Resendiz, 25 Cal.4th 230 (2001).

[240] The court observed that the “collateral consequences” doctrine grew out of a “policy-based adjunct to the due process requirement that a court ensure the guilty pleas it accepts are voluntarily given,” while claims of ineffective assistance of counsel invoke the Sixth Amendment Right to Counsel.  Ibid. at 243.

[241] Ibid., at 246 (quoting Strickland, 466 U.S. at 688).

[242] Ibid.; see also People v. Soriano,194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987) (defense counsel must investigate the particular immigration consequences to the defendant of a plea bargain and advise the client of those consequences prior to entry of the plea).

[243] ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.4 (Defendant to be Advised ) (3d ed. 1999); ABA Standards for Criminal Justice, Standard 14-3.2 (Responsibilities of Defense Counsel) (3d Edition, 1999); ABA Standards for Criminal Justice, Pleas of Guilty, Comment, 75 (2d ed. 1982).  The United States Supreme Court has held that these standards may be applied as guides to determining what is reasonable to require of defense counsel as a component of effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 688 (1984).

[244] Ibid. [emphases supplied].

[245] ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.4 (Defendant to be Advised ) (3d ed. 1999); ABA Standards for Criminal Justice, Standard 14-3.2 (Responsibilities of Defense Counsel) (3d Edition, 1999); ABA Standards for Criminal Justice, Pleas of Guilty, Comment, 75 (2d ed. 1982).

[246] Strickland v. Washington, 466 U.S. 668, 691 (1984).

[247] See also Kimmelman v. Morrison, 477 U.S. 365, 384, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986); Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir. 1992) (vacating conviction); United States v. Burrows, 872 F.2d 915, 918 (9th Cir. 1989) (reversing conviction for failure to investigate a mental defense); Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (holding a failure to investigate “cannot be construed as a trial tactic” where counsel did not even bother to view relevant documents that were available).

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

[249] 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.