Tooby's California Post-Conviction Relief for Immigrants

The Sixth District court of appeal held that counsel rendered ineffective assistance when he 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.[192]  In People v. Bautista, the court found that defense counsel had failed to perform in an objectively reasonable manner when he did not discuss with the defendant the options of pleading guilty to a greater offense—i.e., “offer to sell” or “transportation” of marijuana—which was not an aggravated felony— in place of the plea to possession for sale of marijuana, which was an aggravated felony.[193] 

Thus, under People v. Bautista, counsel must not only advise clients about immigration consequences, but must actively defend against those immigration consequences by pursuing alternative, immigration-safe, dispositions.  “[F]ailure to investigate, advise, and utilize defense alternatives to a plea of guilty to an ‘aggravated felony’ may constitute ineffective assistance of counsel even if a defendant is warned that he ‘would’ be deported.”[194] 

The Ninth Circuit also held, in Kwan, supra, that once defense counsel should have learned the correct immigration situation, he rendered ineffective assistance by failing to attempt to renegotiate the case with the prosecutor, and by failing to make a motion before the sentencing court, seeking a non-deportable result.[195]

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

[193] Ibid.

[194] Ibid.

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