The Possible Immigration Consequences

The Possible Immigration Consequences of a Conviction: Your Ethical Duty to Your Client

Although a deportation may result in “loss of both property and life; or all that makes life worth living,” Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), most cases generally do not hold judges, prosecutors, or defense attorneys accountable for failing to advise aliens of the immigration consequences of criminal convictions. Several state statutes, however, require it and cases recognize that effective lawyers and judges attend to collateral consequences of criminal convictions. See American Bar Association Standard for Criminal Justice:

To the extent possible, defense counsel should determine and advise the defendant sufficiently, in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.

ABA, Standards for Criminal Justice, Responsibilities of Defense Counsel, Standard 14-3.2(f)(2000); see also Standards for Criminal Justice: Pleas of Guilty, Standard 14-3.2(0 (1999).

This standard has provided authority to find counsel ineffective for failing to advise of immigration consequences. See, e.g., People v. Garcia, 799 P.2d 413, 415 (Col. Ct. App. 1990), aff'd, 815 P.2d 937 (Col. 1991). The Ninth Circuit has recently relied heavily on the ABA standard in finding that an attorney’s misadvising a client that there were no immigration consequences to a plea was ineffective assistance of counsel. United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (noting that Supreme Court recognizes ABA standards as useful guide to reasonable attorney performance).

Moreover, the law is changing. The legal fiction that all civil consequences of criminal convictions are not “direct” is hard to maintain. See, e.g., United States v. Littlejohn, 224 F.3d 960 (9th Cir. 2000) (guilty plea rendering defendant ineligible for food stamps and Social Security benefits, though “civil,” is a direct consequence that effective counsel must advise).

So far, courts have not extended this analysis to the immigration context; see United States v. Amador-Leal, 276 F.3d 511 (9th Cir. 2002) (trial court need not inform defendant of immigration consequences because of fiction that immigration law did not guarantee defendant’s deportation); but the prudent defense lawyer will be cognizant of the consequences and will be sure to counsel accordingly.

From The Criminal Lawyers' Guide to Immigration Law: Questions and Answers, Second Edition

by Robert J. McWhirter
ABA Criminal Justice Section

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