Tooby's California Post-Conviction Relief for Immigrants

Even if the conviction is valid, the sentence may be vacated on grounds of ineffective assistance if counsel's failure to investigate or pursue useful sentencing alternatives was not the result of any valid tactical decision and prejudice is shown.  See § 8.45, infra.[196]

            The right of a defendant in criminal proceedings to the effective assistance of counsel specifically applies to sentencing proceedings.[197]  In fact, for a non‑citizen, the sentencing stage is often a truly crucial arena in which the greatest care is necessary in order to avoid adverse immigration consequences.  See Chapter 8, infra.  This is particularly true now, when many very common felony convictions are transformed into "aggravated felonies," with the most serious of all adverse immigration consequences, when the defendant receives a sentence imposed of 365 days in custody, as opposed to 364.  While Soriano concerned whether a conviction would be a deportable crime involving moral turpitude, with a one-year sentence imposed, it is highly analogous to the current aggravated-felony sentence test for many common offenses.[198]

            Depending upon the immigration status of the client and the nature of the criminal conviction, there are many defensive procedures that should be undertaken in order to render effective assistance of counsel at sentence.[199]  Counsel must conduct sufficient research into the immigration consequences of the various sentence choices facing the court (or consult with an immigration lawyer) and advise the defendant of the immigration effects of different choices in the sentencing process.[200]  For information on the immigration effects of sentencing, see Chapter 8, infra.

In Soriano, supra, the defendant received a sentence of 365 days, and was deportable, while a sentence of 364 days would have avoided deportation.  Many cases will be almost identical, where a sentence of 365 days or more is imposed for one of the many types of crime that will then be considered an “aggravated felony” only if that sentence is imposed: common offenses such as any “crime of violence,” theft offense, burglary, receiving stolen property, perjury, obstruction of justice, and the like.[201]  These convictions would then constitute “aggravated felonies,” with the most terrible of all immigration consequences, only if the defendant received a sentence imposed of 365 days or more on that count.  A sentence of 364 days or less on any such conviction would avoid “aggravated felony” status, and enable the immigration court to consider granting discretionary relief from deportation if the defendant was otherwise qualified for “cancellation of removal.”[202]

[196] People v. Barocio (1989) 216 Cal.App.3d 99, 264 Cal.Rptr. 573 [failure to advise re the former judicial recommendation against deportation constituted ineffective assistance at sentencing stage]; Janvier v. United States (2d Cir. 1986) 793 F.2d 449 [failure to seek judicial recommendation against deportation is ineffective assistance of counsel at sentencing stage].

[197] Darden v. Wainwright, 477 U.S. 168 (1986); Strickland v. Washington, 466 U.S. 668 (1984); In re Perez (1966) 65 Cal.2d 224, 229‑230, 53 Cal.Rptr. 414.

[198] People v. Soriano (1987) 194 Cal.App.3d 1470.

[199] See N. Tooby & J. Rollin, Criminal Defense of Immigrants, Chap. 10, Sentence (2007).

[200] See People v. Soriano, supra, 240 Cal.Rptr. at 336 ["[W]hatever advice his counsel did give him was not founded on adequate investigation of federal immigration law."]; People v. Barocio, supra.

[201] 8 U.S.C. § 1101(a)(43).  See § § 8.5-8.6, infra.

[202] 8 U.S.C. § 1229b(a).