ADVISING IMMIGRANTS: Duties of the Defense Bar, the Prosecutors and the Bench

According to the 2021 United States Census Bureau, 25% of Contra Costa County’s population is foreign born. Criminal convictions carry severe and often irreversible consequences to non-citizens, including mandatory deportation, permanent inadmissibility, immigration detention and family separation. In some cases, the immigration consequences are much more severe than the punishment in a criminal case, causing a devastating ripple effect to communities and children who remain without a caregiver or a dependable support structure.

Although immigration consequences differ depending on the individual’s status in the United States, whether someone is undocumented, an asylum seeker, or a permanent resident, counsel must investigate and advise all noncitizens about the immigration consequences of criminal convictions. One cannot simply assume that because a noncitizen has other convictions, is undocumented, or is facing only a misdemeanor, the conviction has little or no effect. Avoiding a conviction or negotiating an immigration-safe plea must always remain a top priority for criminal defense counsel. With a few limited exceptions, even after a criminal conviction is expunged, it will remain a conviction for immigration purposes, often precluding noncitizens from seeking many forms of immigration relief.

Duties of Criminal Defenders

Any criminal defense counsel must investigate, advise, and mitigate adverse immigration consequences; failing to advise is considered ineffective assistance of counsel. (Padilla v. Kentucky (2010) 559 U.S. 356; People v. Patterson (2017) 2 Cal.5th 885.) This duty is codified in Penal Code §§ 1016.2 and 1016.3, mandating that defense counsel shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition, and when consistent with the goals of/the informed consent of the defendant, and professional standards, defend against those consequences.

Defense counsel’s advice must be case specific, identifying immigration consequences applicable to each individual case. (People v. Soriano (1987) 194 Cal.App.3d 1470.) Counsel’s obligations to defend against adverse immigration consequences continues during the plea negotiations. (People v. Bautista (2004)115 Cal.App.4th 229.) Even if individuals have prior convictions, avoiding a new conviction is still a priority because the old conviction may be vacated for Padilla violations.

Using an immigration intake form to gather immigration history must become one of the main steps during the case intake process. After gathering this information, the attorney should consult with an immigration consequences of criminal convictions counsel (“ICCC”) about the best outcome and the anticipated immigration consequences.

Simply assuming a conviction is safe because it is a misdemeanor is extremely dangerous. A criminal conviction for simple possession of a controlled substance will trigger mandatory ICE detention and a permanent bar to immigration relief, including temporary protected status. Even green card holders who have been in the United States for decades can be deported if convicted of simple possession of a controlled substance. Any admission related to a controlled substance will make a noncitizen deportable and inadmissible per 8 U.S.C. § 1227 (a)(2) (B)(iiii).

Under 8 U.S. Code § 1182 (Section 212(a)(2) of the Immigration and Nationality Act), individuals eligible for a U Visa as a victim of a crime, or for family reunification cannot obtain immigration benefits if convicted of an aggravated felony or a crime involving moral turpitude (“CIMT”). Pursuant to 8 U.S.C. § 1227 (a)(2)(A)(i), a person convicted of a CIMT within five years of admission and for which a sentence of one year or longer may be imposed, is deportable.

To qualify for immigration relief such as cancellation of removal, VAWA, voluntary departure and even naturalization, an individual must demonstrate good moral character for the preceding five years. Furthermore, serving 180 days or more in custody creates a presumption of bad moral character.

When resolving a case with immigration consequences, defense counsel should utilize a “Palmer plea,” which allows the court to accept a plea without requiring counsel to stipulate to a police report or other documents that may be admissible in immigration court: such as judgement and sentence, complaint or information, plea form, plea colloquy, jury instructions and abstract of judgment. (Shepard v. United States (2005) 544 U.S. 13.)

There is a myriad of rules and regulations counsel must consider when representing noncitizens, and consulting with the immigration consequences attorneys is a must.

Duties of Prosecutors

Under Penal Code § 1016.3 (b), the prosecutor, in the interest of justice, and in furtherance of the findings and declaration in Section 1016.2, shall consider the avoidance of adverse immigration consequences in plea negotiations as one factor to reach a just resolution.

Deportation is a severe and disproportionate punishment for a noncitizen and the prosecutors should evaluate whether this extreme outcome is warranted based on the nature of the offense and the mitigating factors. By offering immigration-safe dispositions to noncitizens, even if it carries additional terms, prosecutors can achieve a fair and just outcome and avoid extreme punishment. Furthermore, by discussing adverse immigration consequences during the plea negotiations, the prosecutor has an advantage of leveraging the noncitizen to resolve a case on terms that do not carry serious immigration consequences.

Since prosecutorial discretion in plea negotiations has a profound impact on an outcome of a noncitizen’s case, the Contra Costa County’s District Attorney’s Office developed an immigration policy to evaluate cases with potential immigration consequences. The policy states that consideration of immigration consequences is mandatory during plea negotiations, but also notes that victim’s rights must be considered, and every plea must have a factual basis. The policy requires that defense counsel provide, in writing, information about their clients’ status and the adverse immigration consequences. Although there are positive and negative factors in disclosing your clients’ status to the prosecutor, and counsel should consider the risks of providing this confidential information, the policy mandates that no information provided by defense counsel be shared with federal immigration officials.

Among the factors prosecutors consider in crafting an immigration-safe plea are severity of the crime, the impact on the victim and the community, the history and the character of the accused, and the impact of the disposition on the present and potential future immigration consequences. They also rely on the factors for aggravation and mitigation listed in California Rules of Court, Rule 4.410, 4.421 and 4.423.

Duties of the Court

Pursuant to Penal Code § 1016.5(a), the court, prior to the acceptance of a guilty or no-contest plea, shall warn the defendant that the offense may “have the consequences of deportation, exclusion from admission to the United States or denial of naturalization.” Although the court must advise about the potential immigration consequences, the court’s advisement does not protect against future claims of ineffective assistance of counsel if defense counsel did not provide competent advice.

The court should not inquire about a person’s immigration status or compel a party or counsel to disclose it in open court unless, after an in-camera hearing, the judge determines that this evidence is admissible, subject to some limited exceptions. (Evidence Code § 351.4(a).)

Although not a duty, the court can play a significant role in administering justice by extending judicial diversion as a disposition. If successfully completed, pretrial judicial diversion is a great option for noncitizens because it does not result in a “conviction” for immigration purposes. Judicial diversion does not require an admission of guilt, and there is no finding of guilt by the court.

If there is a contention that a noncitizen’s plea should be set aside as invalid, the court will have to evaluate whether a conviction procured through a guilty plea was knowing, intelligent, and voluntary, or whether it was undermined by ineffective assistance of counsel and violated state and federal constitutional standards. (See, e.g., Cardoso-Tlaseca v. Gonzales (9th Cir. 2006) 460 F.3d 1102, 1104.)

Penal Code § 1473.7(a) authorizes vacaturs where the defendant’s “conviction or sentence is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences.” For immigration purposes, a vacatur must be based on a legal error in the underlying conviction. (Matter of Pickering, 23 I&N 621 (BIA 2003).)

A state court vacatur pursuant to Penal Code § 1473.7 is available to the court as a tool to set aside defective convictions that are based on involuntary pleas or ineffective assistance of counsel.

In summary, the defense bar, the prosecutors, and the bench must be cognizant of their duties related to noncitizen individuals who are facing criminal charges and potentially catastrophic immigration consequences.


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