Bad Advice About Deportation is Ineffective Assistance: U.S. v. Murillo, Fourth Circuit Court of Appeals, Decided June 24, 2019
In U.S. v. Murillo, the Fourth Circuit Court of Appeals held that, when an attorney gives bad advice about deportation consequences, it is ineffective assistance of counsel.
Murillo was charged with conspiracy to distribute and possession with intent to distribute cocaine. He retained an attorney who advertised herself to the Latino community as an immigration lawyer.
He told his attorney repeatedly that his “primary concern was the impact a criminal conviction could have on his status as a lawful permanent resident of the United States.” His attorney told him that, if he pled guilty to conspiracy to distribute cocaine, deportation was a possibility, but they could fight it in immigration court based on the length of time he had been in the country.
After he pled guilty, Murillo discovered that conspiracy to distribute cocaine is, in fact, an aggravated felony under the Immigration and Nationality Act that requires mandatorydeportation.
Although the district court denied his 2255 motion to vacate his conviction based on ineffective assistance of counsel, the Fourth Circuit Court of Appeals disagreed. When a defense lawyer gives bad advice about deportation and their client relies on that advice to plead guilty, it is ineffective assistance and the client is entitled to a new trial.
Is It Ineffective Assistance of Counsel to Give Bad Advice About Deportation?
The Fourth Circuit’s ruling in Murillo is not something new and groundbreaking. The US Supreme Court and Circuit Courts of Appeal have made it clear that it is ineffective assistance of counsel to give bad advice about deportation when the client relies on that advice to enter a guilty plea.
In Padilla v. Kentucky, the United States Supreme Court held that counsel must advise his or her client as to immigration consequences and that failure to do so is ineffective assistance of counsel:
It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.
Numerous lower court opinions decided before Padilla had already found that, when a defense attorney gives bad advice about deportation (similar to the facts of Murillo), it is ineffective assistance of counsel.
What happens if a defense lawyer gives no advice about immigration consequences? If the attorney is not sure of the immigration consequences, or wants to encourage their client to plead guilty, can they simply avoid the question when speaking to their client?
Is It Ineffective Assistance of Counsel to Give No Advice on Immigration Consequences?
When a client makes it clear that the possibility of deportation is a priority for them, and defense counsel gives bad advice about deportation, courts have consistently held that is ineffective assistance of counsel.
For example, SC state appellate courts have long held that bad advice on collateral consequences – and deportation is possibly one of the most severe collateral consequences – is ineffective assistance of counsel.
Pre-Padilla decisions in South Carolina say that defense counsel does not have any obligation to give any advice regarding collateral consequences. Smith v. State, 329 S.C. 280 (1997) (where counsel gave no advice regarding the fact that plea was to a violent offense, there were no grounds for post-conviction relief because it was a collateral matter). But when counsel does give advice on a collateral consequence and that advice is wrong, it is grounds for post-conviction relief. Hinson v. State, 297 S.C. 456 (1989).
That changed after Padilla v. Kentucky. The US Supreme Court in Padilla recognized the extreme injustices that result when the courts allow a defense lawyer to completely ignore the deportation consequences that a client may be facing, and they found that defense attorneys have a duty to advise their clients if the client is facing deportation:
A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “the advantages and disadvantages of a plea agreement.” Libretti v. United States, 516 U. S. 29, 50–51 (1995). When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.[Footnote 11] Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available. It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so “clearly satisfies the first prong of the Strickland analysis.” Hill v. Lockhart, 474 U. S. 52, 62 (1985) (White, J., concurring in judgment).
If your attorney 1) gave you bad advice about deportation or 2) failed to give you any advice about deportation before you entered a guilty plea that subjects you to deportation, you may be able to have the conviction overturned through a 2255 motion (in federal court) or post-conviction relief (PCR or Habeas relief in state court).
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