Attorney’s Incorrect Immigration Advice May Not Be IAC

Our office receives at least three calls or emails every week from people or family members of people who were convicted and claim that the defense attorney was incompetent.  These people may not state in so many words that there was ineffective assistance of counsel (IAC), but this is what they intend to tell us. 

They want to know if we can help them “re-open the case,” which generally means to vacate the conviction or have their loved one released from jail or prison based on IAC.

To obtain relief, i.e., an order to vacate a conviction or for a writ of habeas corpus, on a claim of ineffective assistance of counsel, a defendant must establish both: (1) that his attorney’s performance fell “below an objective standard of reasonableness;” and (2) prejudice, meaning “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  United States v. Quintero-Barraza (9th Cir., 1995) 78 F.3d 1344, 1348 (quoting Strickland v. Washington (1984) 466 U.S. 668, 687-88, 694).

In assessing an attorney’s performance, a reviewing court is generally highly deferential.  The defendant “must surmount the presumption that, ‘under the circumstances, the challenged action must be considered sound trial strategy.’” Quintero-Barraza, supra, quoting Strickland, at 689.

Under the prejudice analysis, to determine whether a defendant would have gone to trial if his attorney had provided competent advice, the judge assesses: (1) how likely the defendant would be to prevail at trial; (2) the defendant’s relative connections to the United States and to his county of citizenship; (3) the relative consequences of the defendant’s guilty plea compared to a guilty plea at trial; and (4) any evidence of how important immigration consequences were to the defendant when he pleaded guilty. Lee v. United States (2017) 137 S. Ct. 1958, 1967-69.

In evaluating how likely a defendant would be to prevail at trial, particularly when defendant has no viable defense at trial, he might rationally go to trial only under “unusual circumstances.” Lee, supra, at 1967.

Applying this law to the facts of United States v. Cosme Rodriguez, the United States Court of Appeal for the Ninth Circuit found that Mr. Rodriguez, claiming his attorney was IAC, could possibly vacate his conviction with testimony from his former attorney, so the Ninth Circuit reversed the district court and remanded the case for an evidentiary hearing with prior counsel.

We find this opinion interesting enough for a closer look.  Mr. Rodrguez, a Mexican citizen and United States permanent resident, was arrested in 2011 in Northern California while trying to sell five pounds of methamphetamine to a confidential informant.  He was then charged with possession of methamphetamine with intent to sell and conspiracy to distribute methamphetamine (21 U.S.C. §§ 846, 841(a)(1)), both offenses for which Rodriguez could be removed from the United States if convicted.

Rodriguez pleaded guilty to the conspiracy count (which had a minimum term of ten years and a maximum term of life in federal prison) and later moved to vacate his conviction under 28 U.S.C. § 2255.  The district court denied his motion.

Rodriguez then appealed to the Ninth Circuit.  The Ninth Circuit reviewed Rodriguez’s claim, which centered around Rodriguez’s claim that, despite the judge’s thorough warning to him about the immigration consequences, his attorney assured him that preventing removal was “do-able” and that without such advice from his attorney, he would have proceeded to trial or continued negotiating for a better deal.

In Rodriguez’s case, under the facts of how he was found with the five pounds of methamphetamine and his admission after being arrested, post Miranda warnings, going to trial would be unwise.  The Ninth Circuit found he would certainly be convicted and there were no “unusual circumstances” to go to trial.

Moreover, the plea bargain negotiated for Rodriguez cut his sentence in half, which was good for him, making the sentencing consequences of trial more harsh.

However, the Ninth Circuit found that the district court should have held an evidentiary hearing to determine how important the immigration consequences were to Rodriguez at the time of the plea since the record did not conclusively disprove Rodriguez’s claim.  Accordingly, the district court reversed the ruling on the IAC claim and remanded the matter for an evidentiary hearing on this issue.

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