Ineffective Assistance of Counsel and Immigration Consequences

Immigration consequences and ineffective assistance of counsel
Entering a guilty plea to a crime can have immigration consequences.

Recently the Utah Court of Appeals addressed whether an attorney was deemed to have given ineffective assistance of counsel to a non-U.S. citizen. In State v. Aguirre-Juarez, the defendant plead guilty to one count of attempted identity fraud, a class A misdemeanor.  She had allegedly used a fake green card, an alien registration number that didn’t belong to her, and someone’s social security number.

Her attorney was able to work out a plea option where one count would be dismissed and she would plea guilty to one reduced count. Under the Immigration and Nationality Act, any alien convicted of a crime of moral turpitude “for which a sentence of one year or longer may be imposed” can be deported. The defendant’s attempted identity fraud conviction was a class A misdemeanor which carries jail time of up to one year, which would make it fall squarely within the purview of the INA language above. The defendant’s attorney was aware of this and thus was able to get the court to sentence his client to only 364 days, with most of that sentence being suspended.  This took her outside the INA one -year language. She agreed to the deal and expressed that she understood her conviction could have immigration consequences.

The problem arose when after the fact it was discovered that another provision of the INA prohibits an individual convicted of a crime of moral turpitude and sentenced to incarceration for six months or more from being able to be readmitted to the United States. Apparently neither defense counsel nor the prosecutor were aware of this. Defendant appealed claiming that her attorney should have known about this and she was entitled to an attorney who was aware of this provision of the INA.

In determining whether the defendant’s attorney had provided ineffective assistance of counsel the court addressed whether (1) the attorney’s performance was deficient and (2) whether the attorney’s performance prejudiced the defendant. The Court of Appeals addressed only the second prong and found that she was not prejudice because even if she had been sentenced to less than six months she still would not have been able to re-enter the United States because of yet another provision of the INA prevents “any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure . . . a visa, other documentation, or admission into the United States or other benefit provided under this Act.” The Court found this section of the INA would apply to defendant because she sought to gain employment in the United States (a benefit to which she was not entitled) through fraud.  Thus, the defendant could not show prejudice and her claim was denied.

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