Kwan: an approach to erroneous immigration advice in criminal cases

The dirty secret is that many criminal defense practitioners who routinely represent aliens fear and misunderstand immigration law. As a consequence, alien defendants, with little or no understanding, are sometimes convicted on relatively minor charges that have negligible short-term but disasterous long-term consequences. By the time the alien is in federal court facing an illegal reentry felony, there are often limited legal defenses, despite massive and compelling equities based on long-term residence and close family ties to this country. The Ninth Circuit has issued an important opinion that should spark creative thinking by federal defenders regarding procedural and substantive approaches to prior convictions obtained as a result of prior counsel's bad immigration advice.

In Kwan (available here), the attorney for a Korean defendant negotiated a guilty plea to federal bank fraud. When Mr. Kwan, who was a lawful permanent resident alien with a United States citizen family, inquired regarding immigration consequences, the attorney advised that, although deportation was possible, defenses could be pursued to avoid that consequence. What the attorney failed to note was that, with a sentence greater than one year, the conviction constituted an aggravated felony, which forecloses almost all forms of relief from deportation.

With proper advice, the result could have been different. If there had been a slight adjustment of the plea agreement or the sentence, the conviction would not have resulted in an aggravated felony. After Mr. Kwan completed his 18-month sentence, and well after the statute of limitations for § 2255 motions, the immigration service found the conviction to be an aggravated felony, requiring that Mr. Kwan be deported. Realizing he had received erroneous advice, Mr. Kwan filed a writ of error coram nobis seeking relief from his federal conviction.

The Ninth Circuit first found that the writ was available. Mr. Kwan had established the four predicates for coram nobis relief: 1) no other, more usual remedy was available; 2) he had valid reasons for not raising the issue earlier; 3) he suffered adverse consequences sufficient to establish a case or controversy; and 4) the error implicated fundamental rights. The second factor -- based on discovery of the error -- provides a strong argument, by analogy, that state remedies should still be available to attack state convictions obtained by wrongful advice. "Only after the INS re-initiated removal proceedings against Kwan and determined that his conviction was an aggravated felony...did Kwan have reason to conclude that his criminal defense counsel had in fact erred and affirmatively misled him by advising him that there was 'no serious possibility' that his conviction would cause him to be deported."

On the merits, the court vacated the conviction based on ineffective assistance of counsel. The most useful tool from Kwan is the distinction between failure to advise and misadvice regarding immigration consequences. The Kwan court recognized precedent finding that simple failure to advise does not constitute ineffective assistance of counsel in federal court (Fry). But in this case, Mr. Kwan made specific inquiries regarding immigration consequences. In response, the attorney misled him into believing that deportation was a possibility, not a virtual certainty. That the lawyer acted out of ignorance was no excuse: "Although counsel was a criminal defense attorney and not an immigration attorney, counsel made an affirmative representation to Kwan that he had knowledge and experience regarding the immigration consequences of criminal convictions; as a result, counsel had a professional responsibility to inform himself and his client of significant changes in the law that drastically affected the immigrationn consequences of his client's plea." The court relied heavily on American Bar Association standards: criminal defense attorneys have an obligation to fully advise defendants regarding immigration consequences of conviction such as deportation.

In Oregon, the courts have found a duty to advise regarding immigration consequences. In Gonzalez v. Oregon, a court of appeals case upon which the Oregon Supreme Court has granted review, the court found ineffective assistance of counsel based on misadvice regarding immigration consequences of an aggravated felony. "Because the current immigration scheme all but requires aliens convicted of aggravated felonies to be deported, we conclude that petitioner's trial counsel was obligated to tell petitioner that he was pleading guilty to an aggravated felony and that, unless the United States Attorney General or his designee chose not to pursue deportation proceedings, he would be deported as a result of his guilty plea." Based on Gonzalez, CJA panel attorney Michael Levine prevailed in post-conviction in Washington County, Oregon, in Kishore v. Oregon, a case the state is appealing.

These developments provide bases for creative and aggressive approaches to the heart-breaking cases in which, due to incompetent representation, clients with close family ties to this country are facing substantial prison time, followed by exile. The cases are also a reminder of the importance of providing correct legal advice to criminal defendants regarding immigration consequences, even if that means securing an immigration expert to assist in the representation.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon