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Appellate practice dedicated exclusively to filing deportation appeals, motions to reopen, reconsider, remand and/or reissue before Immigration Judges or the Board of Immigration Appeals, and filing petitions for judicial review of deportation orders in all of the Federal Circuits of the United States.


Ineffective Assistance of the Criminal Defense Attorney in Criminal Court Proceedings; What, How and When Does it Happen? What Can be Done to Remedy such a Prior Wrong? 


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).

 

 


 
 
 
As a result, at least nineteen states have placed immigration consequence warnings of a conviction in their laws to inform noncitizen defendants of the potential harm to their immigration status.