DEFENSE COUNSEL MUST PROTECT A NON-CITIZEN DEFENDANT’S IMMIGRATION INTERESTS

The California Legislature has found that noncitizen defendants face a certain type of consequence related to their immigration status that other defendants do not suffer. This consequence can be a denial of an immigration benefit such as a U-VISA, naturalization, or even lead to removal from the United States even if you are a lawful citizen. Since noncitizen defendants face these consequences that others do not face, it has been recognized in precedential decisions such as Padilla v. Kentucky (2010) that attorneys owe their non-citizen clients a duty to defend and protect their immigration status. The Courts as well as our California Legislature have acted to protect these rights in the form of statutes. Take for instance the California Legislature’s findings in Penal Code section 1016.2. The language of the Statute is below.

Penal Code Section 1016.2

  • In Padilla v. Kentucky, (2010), the United States Supreme Court held that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. California courts also have held that defense counsel must investigate and advise regarding the immigration consequences of the available dispositions, and should, when consistent with the goals of and informed consent of the defendant, and as consistent with professional standards, defend against adverse immigration consequences. See the ruling in People v. Soriano (1987), People v. Barocio (1989), and People v. Bautista, 115 Cal.App.4th 229 (2004)).

  • In Padilla v. Kentucky, the United States Supreme Court sanctioned the consideration of immigration consequences by both parties in the plea negotiating process. The court stated that “informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.”

  • In Padilla v. Kentucky, the United States Supreme Court found that for noncitizens, deportation is an integral part of the penalty imposed for criminal convictions. Deportation may result from serious offenses or a single minor offense. It may be by far the most serious penalty flowing from the conviction.

  • With an accurate understanding of immigration consequences, many noncitizen defendants are able to plead to a conviction and sentence that satisfy the prosecution and court, but that have no, or fewer, adverse immigration consequences than the original charge.

  • Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, deportation, and permanent separation from close family. In some cases, these consequences could have been avoided had counsel provided informed advice and attempted to defend against such consequences.

  • The immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that 50,000 parents of California United States citizen children were deported in a little over two years. Once a person is deported, especially after a criminal conviction, it is extremely unlikely that he or she ever is permitted to return.

  • It is the intent of the Legislature to codify Padilla v. Kentucky and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section.

Clearly, in the codification of this case law, the California Legislature’s intent was to provide legal protections for non-citizen defendants that may suffer the above-mentioned adverse immigration consequences.

The Constitution Protects Everyone

It is important to recognize that in the United States all people here whether documented or undocumented are afforded protections under the United States Constitution. The framers of the Bill of Rights did not purport to ‘create’ rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing. This is an important principle to understand since everyone in the United States whether undocumented or not can avail themselves of the Constitutional protections afforded all Americans. This above-mentioned concept is important to understand since any post-conviction maneuver whether it be a motion to vacate, writ of habeas corpus, writ of coram nobis, or expungement petition that is used to remedy adverse immigration consequences in immigration court must cause the harmful criminal conviction to be vacated per a constitutional defect in the plea. In other words, a typical expungement via 1203.4 or 1203.4(a) or for rehabilitative purposes does not help your immigration situation.

Post Conviction Relief

Typically a client needs post-conviction relief when a criminal conviction on his or her record will cause him or her to be deported or removed from the United States or if it is a bar to obtaining naturalization or residency. To begin the post-conviction relief process an investigation must be done to first determine what form of relief should be sought. The reason for this is because there are various remedies available and it is important to utilize the most appropriate post-conviction vehicle to remedy your case. During this investigation, all of the relevant documents and files are assessed for various legal arguments that could be used to vacate the conviction. These files and documents include documents and files from the immigrant defendant’s former defense attorney, the court’s file on the case, the court reporter’s transcripts, the district attorney’s file, and other notes and documents that may shed light on how the immigrant defendant entered his or her plea. Once all of the relevant documents are collected the documents are reviewed to determine whether post-conviction relief is possible. If a method to vacate the conviction is found, then the next step is to file the appropriate motion in criminal court and then argue the motion at a hearing. Ultimately a judge decides whether there is good cause to vacate a conviction. To learn more about various post-conviction relief vehicles follow this link.

Criminal Convictions As Grounds For Inadmissability And Removability

Distinguishing between Inadmissibility and Removability

There are two distinct concepts in our immigration law— inadmissibility and removability. “Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted.” See the decision of Judulang v. Holder, 565 U.S. 42, 45, 132 S. Ct. 476, 181 L. Ed. 2d 449 (2011). “An inadmissible alien is one who was not admitted legally to the United States and is removable under § 1182, whereas a deportable alien is in the United States lawfully and is removable under § 1227.” See the decision of Vasquez Hernandez v. Holder, 590 F.3d 1053, 1055 (9th Cir. 2010). Nguyen v. Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018).

There is no doubt that having a criminal conviction or even being suspected of criminal activity can be bad news for a noncitizen seeking to legalize his or her status in the United States. For instance, criminal activity may result in a variety of immigration consequences for non-citizens. Crimes may be grounds for inadmissibility which prohibit a non-citizen’s admission to the United States as a non-immigrant or immigrant. See 8 U.S.C. § 1182 (listing grounds of inadmissibility). Crimes may also serve as grounds for deportation which result in a non-citizen removal from the United States. See 8 U.S.C. § 1227 (listing grounds of deportation). Finally, crimes may render an alien ineligible for certain forms of relief from removal. Note “the grounds for inadmissibility and deportability do not perfectly match, as some conduct and offenses can render a person inadmissible but not deportable, and vice versa.” As cited in the Nguyen, 901 F.3d at 1096, decision. Furthermore, “admission to ‘committing acts which constitute the essential elements of’ a specified offense can make an applicant inadmissible, while, in most cases, a conviction is required to make a noncitizen deportable for the commission of a crime.” Nguyen at 1097.

Padilla V. Kentucky (2010)

In Padilla v. Kentucky (2010) the United States Supreme Court ruled that an immigrant defendant receives ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution if his or her criminal defense attorney fails to protect, investigate, or advise about the actual and specific immigration consequences of petitioner’s plea. A criminal defense attorney must advise of the specific, actual, and easily verifiable immigration consequences of your decision to plead guilty. The United States Supreme Court in Padilla found that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advise for noncitizens accused of crimes has never been more important.

Vacating a Conviction As A Result of Constitutional Defect

While expunging a criminal conviction from your record might help for work or for school purposes in the State of California. An expungement will not delete the consequences of a criminal conviction that will cause an immigrant defendant to become deported, excluded from admission to the United States, or denied naturalization. In order to avoid deportation, exclusion from admission to the United States, or denial of Naturalization an immigrant defendant must have a criminal conviction vacated to avoid adverse consequences stemming from that conviction. Dependent on what legal vehicle or motion was used to vacate the conviction it must be shown that the defendant suffered prejudice as a result of the error. In order to determine if you qualify for the legal remedy of post-conviction relief it is important to consult with one of the qualified attorneys at Uribe & Uribe APLC.

Vacating A Criminal Conviction To Avoid Adverse Immigration Consequences

Vacating a plea to avoid immigration consequences will erase the adverse criminal conviction from the immigrant defendant’s record. Vacating a conviction is not easy since it is essentially asking the court to go back and erase a conviction that has already been placed on a defendant’s record. This process is akin to going back in time and withdrawing your guilty plea. Vacating a conviction can also be a very complicated process. In order to be successful in this process it is important to consider all of the relevant evidence associated with the offending plea including the court file, the court reporter’s transcript of the plea (if available), the prior attorney’s file, and any documentary evidence you may have from the plea. No matter how old the case is this evidence can lead to your post-conviction team to a post-conviction remedy. For these reasons, it is important to engage in post-conviction counsel that maintains an appropriate amount of experience to navigate through the court process.

A Non-Citizen Defendant Must Be Advised Of Adverse Immigration Consequences

There is a significant amount of case law that recognizes protections for immigrant defendants in criminal court. For instance, a court record such as a plea transcript, court minute order, or notes in the court’s file must disclose that a noncitizen defendant has been appropriately advised by the court. The precedent established in case law outlines how a court record must demonstrate that an immigrant defendant has been advised of adverse immigration consequences. A series of these cases make clear that a non-citizen’s rights must be waived knowingly and intelligently. The Boykin-Tahl-Mills test requires a docket entry and/or minute order to recite that the defendant expressly and explicitly waived his constitutional rights. See the cases of Boykin v. Alabama (1969); Mills v. Municipal Court (1973); In re TAHL (1969) for further reference. These include the rights to counsel, jury trial, and confrontation of witnesses/accusers, and against self-incrimination prior to a court’s acceptance of a plea of guilty. See Boykin v. Alabama, supra; In re TAHL; Bunnell v. Superior Court (1975). This waiver must expressly appear on the face of the record (docket). This rule was developed in the case of In re TAHL. The purposes of Boykin, as interpreted and implemented by TAHL, are to assure both that pleas of guilty are intelligently made and to provide a complete record to facilitate the disposition of post-conviction attacks on the plea. See Mills v. Municipal Court. The decision in Boykin established that, where a conviction is obtained by way of a guilty plea, the record must affirmatively disclose that the defendant has voluntarily and intelligently waived his federal constitutional rights against self-incrimination, to trial by jury, and to confront witnesses against him. In TAHL, the California Supreme Court interpreted Boykin to require that each of the three enumerated rights be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea. People v. Howard (1992). It was held that the record’s failure to demonstrate such voluntary and intelligent waiver requires a reversal of the defendant’s conviction. Accordingly, it is important that a thorough investigation is done during the post-conviction process to determine whether a petitioner has at least a colorable legal argument for post-conviction relief.

A Court Record Must Show That an Immigrant Defendant Was Advised of His Or Her Specific Immigration Situation

The California Supreme Court established long ago that it is not too great a burden on the trial judges or clerks under their direction to require minute or docket entries specifically listing the rights of which a defendant is actually advised. This rule was established in the decision of In re Smiley (1967). The Court noted further that minute or docket entries must be prepared for the particular case before the court and the requirement that courts specifically list the rights of which a defendant is actually advised is not satisfied by the use of minute forms containing printed recitals of this advice. Accordingly, it is important that before a non-citizen defendant attempts to vacate a conviction he or she begins the process with a thorough investigation to determine exactly which post-conviction vehicle will better serve the post-conviction goals.

A Defendant Must Understand the Nature of the Plea

The Court has repeatedly noted and condemned the use of inappropriate, inflexible, or outdated printed forms. People v. Succop (1966) This rule was established since it was recognized by the courts that the use of inappropriate, inflexible, or outdated printed forms often “signed” with a rubber stamp infects the whole record. In re Raner (1963), The deficiencies are caused by pre-printed forms or rubber stamps. Nelson v. Justice Court (1978) has been alleviated in many California Courts by the use of “TAHL Waiver Forms.” Worsley v. Municipal Court (1981). These TAHL forms clearly designate a defendant’s Constitutional rights and require the defendant to acknowledge the waiver of those rights by initialing them. Clearly, the rule established here requires that a noncitizen defendant that enters a plea must do so knowingly and have a complete understanding of all of the potential immigration consequences. When considering the state of current statutory law in California it is important to understand that California Penal Code Sections 1016.2 and 1473.7 respectively work to codify some of the past judicial decisions that have been interpreted to protect the immigration interests of noncitizen defendants.

Mere Recitation of Immigration Advisement is Insufficient

When considering a motion under California Penal Code 1016.5 it is important to consider if the noncitizen defendant was advised In the case of Dubon the court found that a mere minute order recitation of immigrant advisement in a preprinted form stating that an immigrant defendant received ALIEN/CITIZENSHIP advisements was an insufficient record for the purposes of Penal Code Section 1016.5. Here the court went on to declare that a minute entry is only useful and compelling evidence to prove specific advice if it is handwritten as the advisements are given. A preprinted minute order provides no insight into the exact advisement that the court gave. The reality is that a waiver must be provided to the immigrant defendant so that he or she can knowingly waive the adverse immigration consequences that would befall him or her. It is important for the immigrant defendant or noncitizen defendant to have a complete understanding of all of the potential adverse immigration consequences.

An Immigrant Defendant Must Be Advised of Relevant Immigration Consequences as a Result of the Plea

When considering a motion under California Penal Code 1016.5 it is important to consider if the non citizen defendant was advised In the case of Dubon the court found that a mere minute order recitation of an immigrant advisement in a preprinted form stating that an immigrant defendant received ALIEN/CITIZENSHIP advisements was insufficient record for the purposes of Penal Code Section 1016.5. Here the court went on to declare that a minute entry is only useful and compelling evidence to prove specific advice if it is handwritten as the advisements are given. A preprinted minute order provides no insight into the exact advisement that the court gave. The reality is that a waiver must be provided to the immigrant defendant so that he or she can knowingly waive the adverse immigration consequences that would befall him or her. It is important for the immigrant defendant or non citizen defendant to have a complete understanding of all of the potentially adverse immigration consequences.