Failure to Advise Client of Immigration Consequences

Hernandez told Currier about her having several young children that she cared for, but he still recommended the plea bargain. He allegedly never told Hernandez that once she finished her jail time, she would be deported, which was true because sales of a controlled substance is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B).

In 2015, Hernandez signed a Tahl waiver and initialed the areas that said she was aware that “if I am not a citizen of the United States, my conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” She then entered her plea and was sentenced to 90 days in the Orange County jail and three years of supervised probation.

In his declaration in support of Ms. Hernandez’s writ of habeas corpus, Currier stated that he did not discuss with the prosecutor alternative pleas to avoid adverse immigration consequences. He also candidly stated that he did not discuss the immigration consequences of her plea or thinking that she would be deported.

Hernandez was released from the Orange County jail after serving 43 days. However, she was then immediately transferred to the custody of immigration officials at the Adelanto Detention Facility. She refused to sign paperwork saying she agreed to be deported. She then spent eight months in immigration detention before posting an immigration bond and being released. She then resumed her work as a medical assistant and began efforts to regain custody of her children, who had been placed in foster care.

In her petition for writ of habeas corpus, Hernandez argued that she received ineffective assistance of counsel in violation of the Sixth Amendment. In support of her petition, she offered a declaration of Katherine Brady, an attorney, who suggested Hernandez could have pleaded to non-deportable alternative offenses such as (“pleading up” to offenses with more exposure, but still non-deportable) such as Health and Safety Code § 11379(a), distribution of a controlled substance (since the substance is not specified, it is not an aggravated felony under federal law), or accessory after the fact under Penal Code § 32, as Hernandez was selling meth with some other men.

We offer this article not to embarrass Mr. Currier, but to help those who are not U.S. citizens facing sales of methamphetamine charges to avoid deportation by pleading to another charge that is not an aggravated felony under immigration law.

The citation for the Fourth Appellate District Court ruling discussed above is In re Reyna Perez Hernandez (4th App. Dist., 2019) 33 Cal.App.5th 530.

For more information about an attorney’s failure to warn a client of the immigration consequences of a plea, please click on the following articles:

1. Motion to Vacate Conviction for Wrong Immigration Advice?
2. What Is Vacating a Conviction under Penal Code 1473.7?
3. Strategies to Avoid Deportation on a Drug Offense