(A)

In General.  The California Supreme Court held that counsel rendered ineffective assistance when he affirmatively misadvised the defendant concerning the actual immigration consequences of a plea, which would require reversal if prejudice is shown.[145]  The Ninth Circuit also held that defense counsel renders ineffective assistance by affirmatively misadvising the defendant concerning the immigration consequences of a conviction.[146]  This is the majority rule in the federal circuits.[147]

 

            If counsel merely repeats to the client the pro forma Penal Code § 1016.5 warning that the plea "may" have three listed immigration consequences, that gives rise to a claim of affirmative misadvice where the truth of the matter is that adverse immigration consequences are automatic or mandatory, rather than discretionary.[148]

           

            The Resendiz Court held that counsel renders ineffective assistance by affirmatively misadvising the defendant of the immigration effects of a plea.  In People v. Soriano,[149] the court held that in order to render effective assistance of counsel, defense counsel must investigate the particular immigration consequences to defendant of a plea and advise the client of those consequences prior to entry of the plea.  Both courts found that it is insufficient for counsel to rely on the general language of Penal Code § 1016.5 that deportation, exclusion, and denial of naturalization may result.[150]  A number of other states are in agreement.[151]

 

            Thus, in order to prevail on a claim of ineffective assistance of counsel during plea bargaining, the client must show either that counsel gave affirmative misadvice or did not investigate and advise the client of the exact immigration consequences that would flow from the conviction.  Further, prejudice must be shown, i.e., a reasonable probability that the client would not have entered this plea if s/he had been told the truth.

 

The Resendiz Court recognized that “deportation is a drastic measure and at times the equivalent of banishment or exile . . . . To banish [noncitizens] from home, family, and adopted country is punishment of the most drastic kind whether done at the time when they were convicted or later.”[152]  Because “criminal convictions may have ‘dire consequences’ under federal immigration law,” and “such consequences are ‘material matters’ for noncitizen defendants faced with pleading decisions,” affirmative misadvice of a plea’s immigration effects can amount to deficient performance under prevailing professional norms.[153]

 

Mr. Resendiz pled guilty to possession for sale of cocaine and marijuana[154] and possession of a usable amount of methamphetamine,[155] which were considered by the INS to be controlled substance and aggravated felony convictions, requiring petitioner’s mandatory deportation.[156]  Prior to pleading guilty, petitioner told counsel he was concerned about keeping his green card, and counsel told him that if he pleaded guilty as charged, there would be “no problems with immigration” except that petitioner would not be able to naturalize and become a United States citizen.[157] 

 

This advice was wrong, because, as the court explained:

[S]uch advice would have been mistaken.  Controlled substance violations “are the most damning convictions in the Immigration and Nationality Act.  There are very few situations where a plea to a narcotics violation would not have a fatal and permanent immigration consequence” as an “alien convicted of a crime ‘relating to’ controlled substances is deportable and excludable.” 

 

Owing to the enactment of IIRAIRA and AEDPA in 1996, petitioner became subject to expedited removal from the United States upon pleading guilty to the charges against him, both because they involved controlled substances and because drug trafficking is considered an “aggravated felony.”  The only contingency on which institution of actual removal proceedings at that point hung was that they be instituted “upon the order of the [United States] Attorney General,” which indeed they were.[158] 

 

Ultimately, due to an evidentiary dispute, the court did not decide whether trial counsel misadvised petitioner as alleged.  The court instead found petitioner had not demonstrated prejudice.

 

The California Supreme Court flatly rejected the collateral consequences argument in In re Resendiz[159] and held that the “collateral consequences” does not bar an immigration-related claim of ineffective assistance of counsel.  The Resendiz court found that the immigration consequences of a conviction were indeed “collateral” because they do not automatically follow from the conviction, and are imposed by a different agency, but the court refused to impose a categorical bar on claims of ineffective assistance of counsel merely because the court is not required, by the due process clause, to advise the defendant on that subject at the time of plea. 

 

The court explained that the two doctrines had different origins: the collateral consequences doctrine “originated as a policy-based adjunct to the due process requirement that a court ensure the guilty pleas it accepts are voluntarily given,” while “the right to competent representation in the guilty plea context directly ‘stemmed from the [Sixth Amendment’s] general principle that all ‘defendants facing felony charges are entitled to the effective assistance of competent counsel.’”[160] 

 

While the right to the effective assistance of counsel is subsumed in the concept of due process of law, the court found:

 

no logical or jurisprudential reason why we should truncate our examination of counsel’s Sixth Amendment responsibilities to noncitizen clients by invoking a categorical concept adopted for policy and convenience in delineating the Fifth and Fourteenth Amendment due process responsibilities of trial courts.  (Emphasis supplied.)

 

Rather, ineffective assistance claims must be assessed under the Sixth Amendment, which looks to the facts of each case to determine “whether counsel’s assistance was reasonable considering all the circumstances.”[161]

 

The Resendiz Court noted that the United States Supreme Court had never applied the “collateral consequences” doctrine to limit claims of ineffective assistance of counsel:

 

The United States Supreme Court has never embraced the collateral consequences doctrine the Attorney General urges us to adopt in this case.  In fact, on review of the Eighth Circuit Court of Appeals’ holding that parole eligibility “is a collateral rather than a direct consequence of a guilty plea, of which a defendant need not be informed” in order for the plea to be considered voluntary (Hill, supra, 474 U.S. at p.55), the high court, instead of itself invoking that doctrine, applied “[t]he longstanding test for determining the validity of a guilty plea [, i.e.,] ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant’” (id. at p. 56).  Nor has the high court ever suggested that ineffective assistance claims based on the giving of erroneous immigration advice ought categorically to be barred.  Rather, recognizing the tremendous personal stakes involved in deportation and exclusion, the court has admonished, “[i]n this area of the law, involving as it may the equivalent of banishment or exile, we do well to eschew technicalities and fictions and to deal instead with realities.”  (Costello v. Immigration Service (1964) 376 U.S. 120, 131.)[162]

 

The court also rejected the “floodgates” argument, finding that immigration consequences were distinctly more severe than other collateral effects, noting that “[p]erhaps nowhere outside of the criminal law are the consequences for the individual so serious.”[163]  The court concluded:

 

The [defendant’s] interest underlying [an ineffective assistance] claim is his interest in having, before he judges the desirability of the plea bargain, a general knowledge of the possible legal consequences of facing trial.  That interest will flow, presumably, more from a particular consequence’s practical import than its formal categorization as collateral or direct.  Classifying immigration consequences as collateral does not diminish their status as “material legal principles that may significantly impact the particular circumstances” surrounding a given plea.  Accordingly, that adverse immigration consequences may for certain due process purposes be collateral to petitioner’s conviction should not preclude application of the ordinary Strickland standards to his ineffective assistance claim based on alleged immigration misadvice.[164]

 

The floodgates argument is particularly ridiculous in this context, since every trial court in the state has been bound for over 20 years since 1987 to follow Soriano, and no flood of litigation resulted.

 

            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. 

 

            This is what the court held in Resendiz: affirmative misadvice by counsel can amount to ineffective assistance of counsel.  The Resendiz Court, however, expressly did not reach the question whether counsel has any duty to investigate and research the immigration consequences.[165]  It therefore left standing nearly 15 years of California case law starting with Soriano finding IAC under such circumstances. 

 

            Even in federal court, which relies largely on the completely illogical collateral consequences doctrine to deny that counsel has a positive duty to advise, misadvice regarding the immigration effects can nonetheless amount to ineffective assistance.

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

[146] United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005).

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

[148] United States v. Couto, 311 F.3d 179 (2d Cir. 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).

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

[150] Resendiz, supra, 25 Cal.4th at 240-42; Soriano, 194 Cal.App.3d 1481-1482, 240 Cal.Rptr. at 336.

[151] People v. Pozo (Colo. 1987) 746 P.2d 523, 527‑529, and authorities cited therein; Lyons v. Pearce (1985) 298 Or. 554, 694 P.2d 969, 976‑978; see Daily v. State (1985) 61 Md.App. 486, 487 A.2d 320.  There is less than unanimity on the subject.  See People v. Kadadu (1988) 169 Mich.App. 278, 425 N.W.2d 784, 785‑787 [arraying split of authority].  See, e.g., State v. Ginebra (Fla. 1987) 511 So.2d 960; People v. Huante (Ill. 1991) 571 N.E. 2d 736, 741‑2.  At least 19 states and the ABA now require counsel to inform a noncitizen of the immigration perils prior to entry of plea.  INS v. St. Cyr, 533 U.S. 299, 322 n.48, 121 S.Ct. 2271 (2001); see D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes, Appendix B (2001); see 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].)  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.

[152] Id. at 250 (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10  (1948), and Lehmann v. Carson, 353 U.S. 685, 691 (1957) (conc. opn. of Black, J.)).

[153] Id. at 250 (quoting People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797-98).

[154] Health & Saf. Code, § § 11351, 11359.

[155] Id., § 11377(a).

[156] INA § § 237(a)(2)(B)(i); (a)(2)(A)(iii).

[157] Resendiz, supra, 25 Cal.4th at 251.

[158] Id. at 251-52.

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

[160] Id. at 243 (emphasis supplied)(citing Hill v. Lockhart, 474 U.S. 52, 57 (1985), quoting McMann v. Richardson, 397 U.S. 759, 771 (1970).

[161] Id. at 243 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984); accord, Roe v. Flores-Ortega, 528 U.S. 470 478 (2000) (rejecting categorical rule for filing of notice of appeal by counsel).

[162] Id. at 244-45.

[163] Id. at 247 (quoting Wallace v. Reno, 24 F.Supp.2d 104, 112 (D.Mass. 1998)).

[164] Ibid.

[165] Id. at 251.

EIGHT COURTS HOLD PADILLA RETROACTIVE
United States v. Obonaga, No. 07-CR-402, 2010 U.S. Dist. LEXIS 63872, 2010 WL 2629748 (E.D.N.Y. June 24, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625 (E.D.Cal. July 1, 2010); United States v. Chaidez, 730 F. Supp. 2d 896, 2010 WL 3184150 (N.D.Ill. 2010); People v. Bennett, 28 Misc. 3d 575, 903 N.Y.S.2d 696 (N.Y. Crim. Ct. May 26, 2010); People v. Garcia, 29 Misc. 3d 756, 907 N.Y.S.2d 398 (N.Y. Sup. Aug. 26, 2010); People v. Ramirez, 29 Misc. 3d 1201[A], 2010 NY Slip Op 51661[U], 2010 WL 3769208 [N.Y. Crim. Ct. 2010]; People v. Ortega, 29 Misc. 3d 1203[A], 2010 NY Slip Op 51679[U], 2010 WL 3786254 [N.Y. Crim. Ct. 2010].

Lower Courts of Ninth Circuit

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES
People v. Perez, ___ Cal.App.4th, ___ Cal.Rptr.3d ___, 2015 WL 332048 (4 Dist. Jan. 27, 2015) (trial court abused its discretion in denying defendant's timely motion to withdraw his guilty plea, pursuant to Penal Code 1018, for ineffective assistance of counsel, based on affirmative misadvisement about the immigration consequences of the conviction, where the evidence was in favor of granting the motion, but the trial court gave no reason for denying the motion); see In re Resendiz (2001) 25 Cal.4th 230, 239, 105 Cal.Rptr.2d 431, 19 P.3d 1171. The court stated: Based on the record in this matter, including the superior court's failure to state any reason for denying defendant's motion to withdraw his guilty plea, we conclude the court abused its discretion. Had the court denied relief because the court found the declarants lacked credibility, for example, we would have accepted the ruling. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1465, 89 Cal.Rptr.3d 402 [appellate court must defer to trial court on credibility of declarants]; Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160, 72 Cal.Rptr.3d 369 [trial court entitled to believe one declarant over another].) Had the evidence been in dispute, we could have relied on the evidence supporting the court's decision to uphold the court's order denying defendant's motion even if the court summarily denied relief. But neither situation is present here. We remand the matter for further proceedings. This is not to say defendant is entitled to withdraw his guilty plea, but when the evidence is one-sided and the court's ruling is contrary to that evidence, [footnote omitted] an order denying relief should alert the reviewing court as to the reason(s) for such a ruling. A denial without any statement of a reason provides no reasonable basis for the denial. (Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal.App.4th 156, 160, 111 Cal.Rptr.2d 636.) (Id. at ___.) Cal Crim Def 20.43

CAL POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES " PREJUDICE
People v. Perez, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 332048 (4 Dist. Jan. 27, 2015) (where defense counsel advised the defendant the plea would not result in his deportation, the fact that the court gave contrary advice does not mean defendant's counsel did not negate the effect of that advisement by telling defendant the advisement is wrong and his guilty plea would not require his deportation. (See In re Resendiz, supra, 25 Cal.4th at p. 235, 105 Cal.Rptr.2d 431, 19 P.3d 1171.) Cal Crim Def 20.43

CAL POST CON " VEHICLES " PENAL CODE 1018 " MOTION TO WITHDRAW PLEA " ARGUMENT
Counsel can argue that a motion to withdraw a plea, under Penal Code 1018, can be filed even years after the sentence was imposed, so long as imposition of sentence was suspended, because under those circumstances, no judgment has ever been entered, so the current motion is timely prior to judgment. Cal Crim Def 20.27

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVICE ON IMMIGRATION CONSEQUENCES " AFFIRMATIVE MISADVICE CLAIMS
Failure to advise claims remain alive for convictions that became final prior to Padilla in those jurisdictions with decisions to that effect, such as California, which had already held that failure to advise constituted ineffective assistance of counsel. People v. Soriano, 194 Cal.App.3d 1470 (1987). The same is true for failure to defend claims. People v. Barocio, 216 Cal.App.3d 99 (1989). The same is true of affirmative misadvice claims. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding that failure to advise or affirmative misadvice constitute ineffective assistance of counsel.

Other

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Bennett, 903 N.Y.S.2d 696, 702 (N.Y. Crim. Ct. 2010) (court found deficient performance, under Padilla, where attorney gave three conflicting bits of advice: that there were no immigration consequences, that he didnt think there were any, or that there was a possible immigration consequence).