Tooby's California Post-Conviction Relief for Immigrants

To make out a claim ineffective assistance of counsel, the defendant must first establish deficient performance.[138]  There are several immigration-related claims of ineffective assistance of counsel that are discussed in this section: 

a)      Counsel failed to investigate the actual (as opposed to possible) federal immigration consequences of a plea, or accurately advise the defendant of them, prior to plea.[139]

b)     Counsel affirmatively misadvised the defendant concerning the actual immigration consequences of a plea.[140]

c)     Counsel failed to investigate the federal immigration consequences creating the immigration problem, and failed to identify or argue for an alternative disposition that would have constituted a solution to the immigration problem.[141]

d)     Counsel failed to make a motion for a non-deportable sentence.[142]  Reduction of even one day in custody as a result of counsel's error is sufficient to constitute prejudice from ineffective assistance at sentence.[143]

e)     Counsel failed to investigate mitigating facts.

f)      Counsel failed to investigate the immigration consequences of trial.

If non-immigration related claims of legal invalidity are available, they are preferable, since if relief is granted there would be no question about the effectiveness of the order in eliminating the conviction for immigration purposes.  If immigration-related claims are the sole practical means of vacating the conviction, however, they should be pursued, since they constitute claims of legal invalidity of the conviction, and are thus effective in immigration court to eliminate the immigration consequences of the conviction.[144]

[138] See Strickland v. Washington (1984) 466 U.S. 668.

[139] People v. Soriano (1987) 194 Cal.App.3d 1470.  See § 8.26.

[140]  In re Resendiz (2001) 25 Cal.4th 230, 105 Cal.Rptr. 2d 431.

[141] People v. Bautista (2004) 115 Cal.App.4th 229, 8 Cal.Rptr. 3d 862.

[142] People v. Barocio (1989) 216 Cal.App.3d 99, 264 Cal.Rptr. 573.

[143] Glover v. United States, 531 U.S. 198, 205 (2001).

[144] Matter of Adamiak, 23 I. & N. Dec. 878 (BIA Feb. 9, 2006)(vacatur based on courts violation of statutory duty to advise defendant concerning potential immigration consequences of plea effectively eliminated conviction for immigration purposes).