Tooby's California Post-Conviction Relief for Immigrants

Under California law, accurate immigration advice from counsel concerning the actual (not merely potential) immigration consequences is compulsory.  This requirement was first established in 1987 by People v. Soriano.[135]  It was later reaffirmed by the California Supreme Court in In re Resendiz,[136] which rejected the argument that the “collateral” nature of the immigration consequences foreclosed any duty on the part of trial counsel to advise the defendant correctly concerning the immigration effects of a plea.  While the “collateral consequences” doctrine is the prevailing rule in federal court,[137] California imposes an affirmative obligation on counsel to defend against the immigration consequences of a conviction.  As seen below, this requires counsel not only to investigate and research the immigration effects, but also to take affirmative action to defend against them.  In light of this clear duty, trial counsel’s failures in this regard are a fertile source of error that frequently gives rise to grounds to vacate the conviction.

[135] People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328.

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

[137] See below for a comprehensive argument as to why the “collateral consequences” doctrine has been erroneously applied to define the scope of counsel’s duties towards his or her client.