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).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO REVIEW AND CORRECT DOCKET SHEET
United States v. Strickland, ___ F.3d ___, 2010 WL 1529414 (9th Cir. April 19, 2010) (en banc)(Maryland conviction for child abuse was a predicate offense relating to sexual abuse of a minor under 18 U.S.C. 2252A(b)(1) and (2) resulting in an increased statutory minimum and maximum sentence, because under the modified categorical analysis, the court properly relied on the uncertified Maryland docket sheet, which Maryland law requires be prepared and maintained by a court clerk, and which defendant has a right to review and correct, is of sufficient reliability under Shepard and Snellenberger and presentence report to establish that the Maryland offense was for sexual abuse of a child).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE ADVICE OF IMMIGRATION CONSEQUENCES " DEFENDANT IS ENTITLED TO KNOW MORE THAN THAT DEPORTATION IS POSSIBLE; DEFENDANT IS ENTITLED TO KNOW IT IS A VIRTUAL CERTAINTY
United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011)(A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.). http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf

Ninth Circuit

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " DEFICIENT PERFORMANCE " COUNSELS FAILURE TO ADVISE THE DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCES OF A PLEA WOULD HAVE BEEN IMPROPER EVEN IF DEFENDANT HAD NOT ASKED ABOUT THE IMMIGRATION CONSEQUENCES
United States v. Bonilla, 637 F.3d 980 (9th Cir. March 11, 2011)(Bonilla met this fair and just reason standard for pre-sentence withdrawal of his plea by virtue of his counsels failure to provide advice upon request, and would have done so even had no such request been made. The district courts failure to grant Bonillas motion to withdraw his plea constituted a failure to apply the rule generously and liberally and resulted in an abuse of its discretion.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO WARN DEFENDANT OF MANDATORY DEPORTATION CONSEQUENCES " COUNSELS BELIEF DEFENDANT WAS A US CITIZEN DID NOT EXCUSE FAILURE TO ADVISE
United States v. Bonilla, 637 F.3d 980 (9th Cir. March 11, 2011)(Indeed, Bonillas lawyer later admitted that at the time of the plea hearing she had mistakenly thought that Bonilla was a citizen, which accounted in part for her less than satisfactory performance in failing to advise Bonilla as to the immigration consequences of his plea.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE ADVICE OF IMMIGRATION CONSEQUENCES " DEFENDANT IS ENTITLED TO KNOW MORE THAN THAT DEPORTATION IS POSSIBLE; DEFENDANT IS ENTITLED TO KNOW IT IS A VIRTUAL CERTAINTY
United States v. Bonilla, 637 F.3d 980 (9th Cir. March 11, 2011)(A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.). http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO REVIEW AND CORRECT DOCKET SHEET
United States v. Strickland, 601 F.3d 963, 2010 WL 1529414 (9th Cir. April 19, 2010) (en banc)(Maryland conviction for child abuse was a predicate offense relating to sexual abuse of a minor under 18 U.S.C. 2252A(b)(1) and (2) resulting in an increased statutory minimum and maximum sentence, because under the modified categorical analysis, the court properly relied on the uncertified Maryland docket sheet, which Maryland law requires be prepared and maintained by a court clerk, and which defendant has a right to review and correct, is of sufficient reliability under Shepard and Snellenberger and presentence report to establish that the Maryland offense was for sexual abuse of a child).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " DEFICIENT PERFORMANCE " COUNSELS FAILURE TO ADVISE THE DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCES OF A PLEA WOULD HAVE BEEN IMPROPER EVEN IF DEFENDANT HAD NOT ASKED ABOUT THE IMMIGRATION CONSEQUENCES
United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011)(Bonilla met this fair and just reason standard for pre-sentence withdrawal of his plea by virtue of his counsels failure to provide advice upon request, and would have done so even had no such request been made. The district courts failure to grant Bonillas motion to withdraw his plea constituted a failure to apply the rule generously and liberally and resulted in an abuse of its discretion.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO WARN DEFENDANT OF MANDATORY DEPORTATION CONSEQUENCES " COUNSELS BELIEF DEFENDANT WAS A US CITIZEN DID NOT EXCUSE FAILURE TO ADVISE
United States v. Bonilla, ___ F.3d ___ (9th Cir. 2011)(Indeed, Bonillas lawyer later admitted that at the time of the plea hearing she had mistakenly thought that Bonilla was a citizen, which accounted in part for her less than satisfactory performance in failing to advise Bonilla as to the immigration consequences of his plea.).