(D)

Federal Law – Failure to Advise of Immigration Consequences.  Federal law does not yet require advice by counsel concerning "collateral consequences," such as immigration consequences.[170]  The Ninth Circuit, however, is beginning to recognize the unfairness of causing extreme immigration consequences without advance notice to the defendant. 

 

            In United States v. Kwan,[171] the Ninth Circuit held that defense counsel rendered ineffective assistance of counsel, even though he correctly advised the defendant prior to entry of plea concerning immigration consequences of disposition of criminal case that deportation was not a serious possibility.  He then failed to notify the defendant when the law changed on September 30, 1996, prior to sentence, and deportation in fact became a near certainty.  If he had been informed of this change, the defendant could have made a motion under F.R.Crim.P. 32(e) to withdraw the plea and attempted to renegotiate the disposition in light of its new legal consequences, or attempted to persuade the court to impose a sentence of less than one year.

 

            In United States v. Gonzalez,[172] the Ninth Circuit held that the district court abused its discretion in denying a prosecution motion to for leave to dismiss Count III of an indictment, to which defendant had entered a guilty plea, charging him with carrying a firearm in relation to a drug trafficking crime.  One of the prosecutor's reasons in attempting to dismiss the charge was to prevent the defendant's deportation after service of his sentence.  The defendant, because of inadequate assistance of counsel, had not been informed, prior to plea, of the deportation consequences of the conviction.  This led to a concern that the plea agreement had been "unfairly negotiated" "when the defendant lacked full information regarding the consequences."[173]  The court held that the desire to prevent deportation, under these circumstances, was in the interests of justice and was "a proper and appropriate reason for dismissing an indictment . . . ."[174]  "Accordingly, we reverse with instructions to grant leave to the prosecution to file the dismissal of Count III."[175]

 

            The defendant did not object to the motion.  One of the prosecution's grounds for the motion to dismiss was:

 

First, he noted that, unless the third count was dismissed, Gonzalez would be deported when he was released from jail; he emphasized that, due to the unusual circumstances surrounding the defendant's citizenship and the inadequate assistance rendered by his counsel, Gonzalez was ignorant of this fact when he agreed to plead guilty.[176]

 

The court stated "due to the unusual circumstances of the defendant's citizenship status [he was not a U.S. citizen] and the poor assistance rendered by his counsel, Gonzalez was not informed of the possible consequences of his plea -- namely that he would be deported when he was released from jail.  The prosecutor expressed concern that the plea agreement was unfairly negotiated, particularly in light of the fact that all of Gonzalez's codefendants had been informed of possible deportation consequences before they entered into plea agreements."[177]

 

Such a justification represents an appropriate ground for a Rule 48(a) motion, as our decision in United States v. Weber,[178] makes clear.  In Weber, we explicitly held that, even after a defendant has been convicted of a crime, a prosecutor may obtain a Rule 48(a) dismissal based on broad considerations of justice.  Weber.[179]  We emphasized that "it is the duty of the United States Attorney not simply to prosecute, but to do justice."[180]

 

Here, the prosecutor sought to dismiss Count III in part because of a desire 'to do justice' -- that is, he was concerned about the fairness and appropriateness of a plea agreement reached when the defendant lacked full information regarding the consequences.  Such a concern, if held in good faith, is a proper and appropriate reason for dismissing an indictment -- at least where the dismissal is not “clearly contrary to manifest public interest.”[181]

 

            Here, the request [for dismissal] was made for reasons that were both proper and appropriate.  Accordingly, we reverse with instructions to grant leave to the prosecution to file the dismissal of Count III.[182] 

 

            The argument that failure to advise correctly concerning the immigration consequences, and failure to attempt to prevent them, constitutes ineffective assistance of counsel runs as follows: "Superficial federal analysis of this issue starts with labeling immigration consequences 'collateral,' and holding the court therefore need not advise the defendant concerning them at plea.[183]  Then, the analysis leaps to the wrong conclusion that because the court need not do so, counsel need not do so.[184]  Nowhere else in criminal law are counsel's duties confused with those of the court."

 

            The Ninth Circuit recently decided this issue for the first time.[185]  Many years ago the Ninth Circuit held the court need not so advise the defendant at plea.[186]  Other circuits have held that defense counsel must take immigration consequences into account at sentencing in order to protect the client if possible against deportation.[187]  Why should counsel not likewise be required to take the immigration consequences into account in negotiating a plea that will avoid stripping away the client's Lawful Permanent Resident status and forcing the DHS to deport him away from his home, wife, and U.S. citizen children?

 

            Professor Amsterdam has written: "No intelligent plea decision can be made by either lawyer or client without full understanding of the possible consequences of a conviction. . . .  In some defendants' cases the consequences of conviction may be so devastating that even the faintest ray of hope offered by a trial is magnified in significance."[188]  He continued: "The possible consequences of a conviction require research in each case concerning: . . . Liability to deportation if the defendant is an alien. . . .  Of course, in addition to knowing each of the consequences that may follow conviction, counsel must undertake to calculate the likelihood of actual occurrence of each." [189]

 

            The absurdity of holding the court's duty to advise the defendant to be equivalent to counsel's duty is easily appreciated by considering a motion to suppress evidence.  Surely, there is no dispute that counsel must investigate the facts concerning a potential motion to suppress evidence, and research the law concerning it, under the client's particular circumstances.  But the court has no such duties.  Similarly, here, counsel has a duty to investigate the defendant's immigration situation, and research the federal immigration law, in order to advise a defendant of the actual immigration consequences a guilty plea will trigger for him or her. [190]  Many resources are easily available to provide defense counsel with the necessary information.[191]

[170]    The Ninth Circuit has held that since the court does not need to inform the defendant of the immigration consequences of a plea, counsel need not do so either.  United States v. Fry, 322 F.3d 1198 (9th Cir. Mar 18, 2003)(failure of trial counsel to advise defendant concerning potential deportation consequences of conviction did not constitute ineffective assistance of counsel); United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); accord, United States v. Gonzalez, 202 F.3d 20, 25 (1st Cir. 2000); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992), cert. denied, 507 U.S. 1039, 113 S.Ct. 1869, 123 L.Ed.2d 489 (1993); United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir. 1990), cert. denied, 498 U.S. 942, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990)(failure of counsel to advise client of immigration consequences prior to plea does not constitute ineffective counsel); Santos v. Kolb, 880 F.2d 941, 945 (7th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764, 769 (11th Cir. 1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975)(per curiam); United States v. Sanchez-Guzman, 744 F.Supp. 997, 1001 (E.D. Wash. 1990).  See also Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Guilty Plea — Federal Cases, 90 A.L.R. Fed. 748.

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

[172] United States v. Gonzalez, 58 F.3d 459 (9th Cir. 1995).

[173]  Ibid. 

[174] Ibid. 

[175] Ibid.

[176] Ibid.

[177] Ibid.

[178] United States v. Weber, 721 F.2d 266 (9th Cir. 1983).

[179] Weber, 721 F.2d at 268.

[180] Ibid. (emphasis added).

[181] Ibid.

[182] Ibid.

[183] United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Dir. 1990).

[184] See also United States v. Sanchez‑Guzman, 744 F.Supp. 997, 1001 (E.D. Wash. 1990); Santos v. Kolb, 880 F.2d 941, 944 (7th Cir. 1989), cert. denied, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990); Annot., Ineffective Assistance of Counsel: Misrepresentation, or Failure to Advise, of Immigration Consequences of Guilty Plea ‑‑ Federal Cases, 90 A.L.R. Fed. 748.  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.

[185] United States v. Fry, 322 F.3d 1198 (9th Cir. Mar 18, 2003)(failure of trial counsel to advise defendant concerning potential deportation consequences of conviction did not constitute ineffective assistance of counsel).

[186] Fruchtman v. Kenton, 531 F.2d 946, 948 (9th Cir. 1976) (court need not inform defendant of immigration consequences in plea colloquy); see Steinsvik v. Vinzant, 640 F.2d 949 (9th Cir. 1981) (same).

[187] E.g., United States v. Castro, 26 F.3d 557 (5th Cir. 1994); Janvier v. United States, 793 F.2d 449 (2d Cir. 1986).

[188] I A. AMSTERDAM, TRIAL MANUAL 5 FOR THE DEFENSE OF CRIMINAL CASES (1988), § 202, pp. 343, 344.

[189] Id. at § 204, pp. 344-346.  Professor Amsterdam, like the criminal client, does not construe the notion of consequences narrowly: he specifically lists forfeiture, civil disabilities including loss of occupational or driver's licenses, disqualification from public office, loss of voting rights, criminal registration requirements, ineligibility for military service, higher insurance rates, and "Restrictions on employment, residence, admission to professions, admission to educational institutions, and so forth."  Id. at p. 346.

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

[191] E.g., D. KESSELBRENNER & L. ROSENBERG, IMMIGRATION LAW AND CRIMES (2008); Hochman, Special Considerations in Representing the Non-Citizen Defendant, FEDERAL DEFENDERS OF SAN DIEGO, INC., DEFENDING A FEDERAL CRIMINAL CASE (1995); K. Brady, Keener, and Tooby, Representing the Noncitizen Criminal Defendant, Chap. 52 in California Continuing Education of the Bar, California Criminal Law -- Procedure and Practice (2008).

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).