AB 1343: Criminal defendants must be informed of immigration consequences

The landscape of federal immigration law has drastically since the implementation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. As the Supreme Court observed in Padilla v. Kentucky, 559 U.S. 356 (2010), there once was a narrow class of offenses that could lead to a person becoming deportable. Further, immigration judges wielded wide discretionary ability to forgive grounds of deportability. Under the current federal immigration regime, however, even minor offenses could lead to permanent banishment, and immigration judges have little authority to forgive these minor convictions.

Due in large part to this recognition, the Supreme Court recognized that the "Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases." See Calif. Pen. Code Section 1016.2. The Padilla court's constitutional mandate is consistent with the California Courts of Appeal's requirements on defense counsel, which trace back to 1987. See People v. Soriano, 194 Cal. App. 3d 1470 (1987) (California courts also have held that defense counsel must investigate and advise regarding the immigration consequences of the available dispositions, and should, when consistent with the goals of and informed consent of the defendant, and as consistent with professional standards, defend against adverse immigration consequences), and People v. Barocio, 216 Cal. App. 3d 99 (1989) (same).

Consequently, with Assembly Bill 1343, the California Legislature codified the holdings in these cases and imposed affirmative duties on both defense counsel and the prosecution. Specifically, the defense counsel "shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition, and when consistent with the goals of and with the informed consent of the defendant, and consistent with professional standards, defend against those consequences." See Calif. Pen. Code Section 1016.3(a). And, "[t]he prosecution, in the interests of justice, and in furtherance of the findings and declarations of Section 1016.2, shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution." See Calif. Pen. Code Section 1016.3(b).

While the language and intent of this bill is undeniably laudable for noncitizen defendants, the bill leaves a few questions unanswered: (1) Is there a procedural avenue to bring a statutory, as opposed to constitutional, ineffective assistance of counsel claim against defense counsel who fails to comply with the statutory mandate? (2) What, if any, evidence with the prosecution be required to show the people have considered potential adverse immigration consequences during the plea negotiation process?

Andres Ortiz is an associate with Fragomen, Del Rey, Bernsen & Loewy LLP.