Commonly
referred to as "Ineffective Assistance of Counsel" claims, in general
terms, an IAC claim is a petition, motion or application filed by a defendant
who received ineffective assistance from his or her prior defense attorney (be
it a public defender or private counsel) during the criminal court proceedings where the
defendant resulted in received a conviction. These motions are regularly filed by defendants, especially
those who are incarcerated doing the time of their respective sentences,
arguing that their representative was so defective in his performance as
counsel for the defendant that the court should grant a new trial.
More
specifically to the subject of this article, when a noncitizen has received
ineffective assistance of counsel during his or her criminal proceedings, it
typically but not always involves a more narrow issue—e.g., the failure of the
criminal defense counsel in informing the noncitizen that agreeing to enter
into a plea bargain for certain specific offenses will cause the immigration
authorities to place a “hold” on the noncitizen, to take her into federal ICE
custody at the completion of the noncitizen’s state custody and, for the most
part, that noncitizen will remain in federal ICE custody for the duration of
the protracted legal fight commencing in the immigration court, then proceeding
to the appeal process with the BIA, and, ultimately, throughout the duration of
the federal court proceedings.
Our
office has handled numerous cases in the past decade, from various states in
the United States, where noncitizens had entered into a plea bargain (an
agreement to plea guilty to a misdemeanor offense), totally unaware that when
the state or county jail released them from the state mandated custody
(although the plea bargain involved say 180 days in county jail in exchange for
the plea of guilty), the noncitizen ended up spending several years in federal
custody while fighting long legal battles to defeat ICE’s efforts to deport
them.
Frequently,
these cases can be resolved by returning to the criminal court that convicted
the noncitizen defendant seeking the reopening of the criminal proceedings
on account that the criminal defense counsel was ineffective in the
representation of the noncitizen. However, the attorney seeking
to reopen a criminal proceedings must place special attention to
the key factors involved in "ineffective assistance of counsel"
claims. [More details below] Sometimes, noncitizens who hired a
criminal defense attorney to represent them in the criminal court, are unaware
that the advice they may receive from their criminal defense attorney may be
reasonably good in the context of the criminal proceedings but often fatal to
their immigration status.
It is
surprising that even today, there are so many criminal defense lawyers
throughout the country in every state of our union whom are not aware that a
good defense “deal” may have the potential to become a “fatal” consequence to
the client’s immigration status. These lawyers acting in good faith do
not think about the immigration consequences that may result from those “good
defense deals” because they are not trained in the complexities of immigration
law and are not aware that the noncitizen client may be deported from the
United States if she agrees to enter into an otherwise “good” plea bargain
agreement.
This is
partly because most state and federal criminal laws do not require the criminal
defense lawyer to be familiarized with this aspect of the criminal consequences
of their pleas. The courts generally treat the consequences as
“collateral” and thus, unimportant to the criminal proceedings.
Hence,
noncitizens who are in criminal proceedings throughout the country should be
aware that before agreeing to enter into a plea agreement, their might be
serious adverse consequences to their right to remain in this country.
Many noncitizens ignoring these immigration adverse consequences accept the
plea bargain recommended by their criminal defense attorney and only learn of the
immigration consequences when they complete serving their time.
An
example of this, is numerous cases that have inundated the criminal courts
seeking to reopen their criminal convictions because after the conviction they
are visited by immigration authorities while in state custody. Jails from
all over the United States are required to notify the Immigration and Custom
Enforcement (“ICE”) agency (previously, the Immigration and Naturalization
Service or INS) that a defendant who has suffered a conviction was born in a
foreign land.
The ICE
agent then is required to investigate the matter by identifying whether the
foreign born defendant is a naturalized citizen. If the defendant is not
a naturalized citizen but a noncitizen (whether legal or illegal), the ICE
agent is required by law to arrest the noncitizen at the moment the jail sets
her free from her state sentence, and she is then transported to a federal
detention facility where she is placed in removal (deportation)
proceedings.
Once in
the custody of the federal detention facilities, the majority of these
noncitizens are not entitled to be released on bail, and often will be detained
throughout the time that it takes them to defend their right to remain with
their families in the United States.
Often,
deportation or removal proceedings may take a few years before they come to a
conclusion. Often, the noncitizens are kept in federal detention
facilities throughout that same amount of time. Often, attorneys
representing these noncitizens have to run to the criminal courts where the
convictions took place, seeking to reopen the criminal proceedings citing the ineffective
assistance of
their criminal defense counsel in recommending a plea without taking into
account the serious adverse consequences resulting from the “good plea
bargain”.
The
attorney representing the convicted noncitizen defendant in reopening the
proceedings in criminal court has a very difficult task ahead in order to
convince the criminal judge that the noncitizen deserves that the proceedings
be reopened. A very
difficult goal to accomplish, specially where it involves a collateral issue
(one that is not directly related to the criminal proceedings).
Fortunately,
there is US Supreme Court precedent on this issue and which must be
followed by all courts in our nation. The pivotal case
in "ineffective assistance of counsel" claims was decided by the
US Supreme Court in Strickland v. Washington, 464 U.S. 668
(1984). In sum, the key factors in that case require the noncitizen to
demonstrate (1) that his or her criminal defense attorney's performance must
have fallen below an objective standard of reasonableness; and (2), must
also show prejudice. In other words, had it not been because of the
attorney's errors, "there would have been a different
outcome." Strickland v. Washington, 466 at 694.
When
claiming ineffectiveness in seeking to withdraw a plea, the Supreme Court held
that the defendant must show that "but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial." See also Hill
v. Lockhart, 474 U.S. 52, 59 (1985).
