In People v. Soriano, [166] 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.  The court held it insufficient for counsel to rely on the general language of Penal Code § 1016.5 warning the defendant at the plea that deportation, exclusion, and denial of naturalization may result.  Even though the proper § 1016.5 warning had in fact been given in the case, the court of appeal vacated the conviction.

 

            Thus, in order to prevail on a claim of ineffective assistance of counsel during plea bargaining, the client must show (a) that defense counsel did not investigate the exact immigration consequences that would flow from the conviction, (b) that counsel did not advise the client of those consequences, and (c) that the client did not enter the plea knowingly and intelligently.  Further, prejudice must be shown, i.e., there is a reasonable probability that the client would not have entered this plea if s/he had been told the truth.  See § 7.26, infra.

 

            The California Supreme Court has not yet reached this conclusion.  In deciding an "affirmative misadvice" case, it stated: "We are not persuaded that the Sixth Amendment imposes a blanket obligation on defense counsel, when advising pleading defendants, to investigate immigration consequences or research immigration law. In any event, petitioner in this case does not allege a mere failure to investigate, so the question is not squarely presented."[167]  It did not, however, even cite, much less overrule, Soriano.  More recently, the Supreme Court stated:

 

Although an attorney has a constitutional duty at least not to affirmatively misadvise his or her client as to the immigration consequences of a plea [citations omitted], any violation in this regard should be raised in a motion for a new trial or in a petition for a writ of habeas corpus.[168]

 

The Supreme Court made no holding on the question whether counsel has a duty to advise.  Again, Soriano was not overruled.  Therefore, Soriano remains binding on trial courts throughout the state. 

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

[167]  Id. at 249-250.

[168] People v. Kim (2009) 45 Cal.4th 1078, 1104, 90 Cal.Rptr.3d 355 (first emphasis supplied), citing People v. Bautista (2004) 115 Cal.App.4th 229 [issuing order to show cause on habeas corpus].)

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].

Other

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
People v. Shokur, 205 Cal.App.4th 1398 (May 16, 2012) (giving of Penal Code 1016.5 advice, which defendant said he understood, precluded him from showing that he did not understand those consequences).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Ex Parte Gonzalez, No. CR-395-08-J(1), slip op. at 2 (Tex. Dist. Ct. Aug. 9, 2010) (where defense counsel advised her client that pleading guilty to a theft conviction may result in deportation, when in fact the theft conviction can readily be determined to be an aggravated felony by simply reading the plain and clear language of [INA 101(a)(43)(G),] 8 U.S.C. 1101(a)(43)(G), counsels failure to inform her client that the INA specifically commands removal for individuals convicted of an aggravated felony constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Rampal v. Rhode Island, 2010 WL 1836782 (R.I. Super. Ct. Apr. 2010) (concluding that a Padilla claim arising from a situation in which defense counsel gave no immigration advice constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Garcia, 907 N.Y.S.2d 398, 403 (N.Y. Sup. Ct. 2010) (concluding that a Padilla claim arising from a situation in which defense counsel gave no immigration advice constituted constitutionally deficient representation).