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Attorney's Duty To Advise Criminal Defendant Of Immigration Consequences

by Cyrus Mehta

It so often happens that a non-citizen who is charged with a crime pleads guilty to a lesser charge in order to minimize jail time. While pleading to a lesser charge may ameliorate the consequences of a graver conviction after a full blown jury trial, the deportation consequences lurking behind the scene for the non-citizen, unbeknownst to his/her criminal defense lawyer, could be rather draconian and even involve a lifetime bar from ever entering the US. Thus, a non-citizen may plead to a misdemeanor or lower felony crime that would still be considered an “aggravated felony” under immigration law. A non-citizen charged with an “aggravated felony” in deportation is unlikely to be able to mount a defense in order to thwart it. Even if the non-citizen does not plead to a charge that would be considered an “aggravated felony,” pleading to a “crime involving moral turpitude” under immigration law could also have adverse immigration consequences.

While avoiding a conviction altogether would be the most desirable outcome, it is important for the criminal attorney to understand how to negotiate a charge down to a lesser offence without creating problems for his/her client in deportation proceedings. Often, the court finds that the criminal attorney has done his/her duty by advising the client about the potential immigration consequences of a conviction, without specifically analyzing whether such a conviction would lead to certain deportation.

Because deportation is a collateral consequence and not a direct consequence to pleading guilty, it is very difficult for a non-citizen to overturn such a plea based on ineffective assistance of counsel.

On August 31, 2004, the New Mexico Supreme Court unanimously held that an attorney representing a client in a criminal proceeding has “an affirmative duty to determine (the client’s) immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status.”

In State v. Paredez, No. 28,270, the court “address(ed) the role of criminal defense attorneys in informing their clients of the immigration consequences of a guilty plea,” and held that affirmatively wrong advice as well as “non-advice” constitute ineffective assistance of counsel.

The following extract from the opinion is worth noting:

“We hold that criminal defense attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain. Proper advice will allow the defendant to make a knowing and voluntary decision to plead guilty. Furthermore, requiring the attorney to give such advice is consistent with the spirit of Rule 5-303(E)(5), which prohibits the district court from accepting a guilty plea without first determining that the defendant has an understanding of the immigration consequences of the plea. An attorney’s failure to provide the required advice regarding immigration consequences will be ineffective assistance of counsel if the defendant suffers prejudice by the attorney’s omission.”

The opinion also suggests a re-draft of New Mexico’s Rule 5-303(E)(5) regarding a trial judge’s duties in accepting a plea.

It is hoped that more courts adopt the reasoning of the New Mexico Supreme Court, as it would alert attorneys representing criminal defendants to seek immigration counsel’s advice about the potential consequences of any plea bargain. In this regard, it is also important for bar associations to create more educational outreach efforts between immigration and criminal defense attorneys.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.