Attorney Failed to Explain Immigration Consequences | Ninth Circuit
In an important ruling, a unanimous Ninth Circuit panel in United States v. Rodriguez-Vega, No. 13-56415 (8-14-15), held that where deportation of an immigrant is a “virtual certainty” as a consequence of a guilty plea, the defense attorney has an affirmative duty to properly advise. It is not enough to say it is a “possibility” under those circumstances.
There, Rodriguez-Vega, a citizen of Mexico, entered the United States when she was 12 and became a legal permanent resident at 13. Ten years later she was charged with alien smuggling-related offenses, although she ultimately pled to a misdemeanor. Although her lawyer had told her about the “potential” for deportation, he thought that the misdemeanor might be helpful for immigration purposes.
The Ninth Circuit held that such nonfeasance constituted constitutionally ineffective assistance of counsel. Echoing Padilla v. Kentucky, this decision reaffirms our duties as criminal defense attorneys to comprehensively understand and correctly advise about harsh immigration consequences, especially in misdemeanors and low level offenses.
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It is truly, at least in my rudimentary thinking, a remarkable, especially given our state’s political history, and monumental step forward.
So, we all know at this point that if you have a conviction for simple or felony marijuana simple possession in Arizona, you can now do something about it.
For those of us who live near or spend our some of our vacation time in these Western States, dominated by beautiful federally-controlled lands
Arizona courts don’t appoint public defenders or indigent defense attorneys on misdemeanors generally unless the prosecutor is looking for jail time.
The Sixth Amendment of the U.S Constitution provides each person investigated or arrested by the police, or charged with a crime, the right to an attorney.
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