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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