Prosecutors Have To Consider The Effects of a Criminal Charge on Immigration

It has long been the law in California and Federally, that the defendant’s attorney must know of and advise them of the immigration consequences of the charges they are facing and any possible plea offers that may be available to them. The state of the law in California stems from a case called People v. Soriano, where in 1987 the California Supreme Court held that failing to advise a defendant of the immigration consequences of his plea was ineffective assistance of counsel requiring that the guilty plea be overturned. The US Supreme Court made the same determination in Padilla v. Kentucky in 2010.  In 2017 California passed Penal Code 1016.2 which codified the law in Padilla and Soriano making failure to adequately advise of immigration consequences ineffective assistance of counsel.

Recently, California passed Penal Code 1016.3 which provides that prosecutors also have to consider the adverse consequences of an plea on a defendant’s immigration status. The law provides:

The 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.

Section 1016.2 lays out that deportation consequences are an integral part of a non-citizens’ decision to accept a plea offer, that deportation may be the most serious consequence to the criminal proceeding and by considering deportation consequences the prosecution and defense can ‘reach agreements that better satisfy the interests of both parties’. Section 1016.2 goes on to say how important and how devastating the removal process can be to a person.  It describes the affect deportation can have and how there’s no real chance to get it right once the person is in removal proceedings as they may be detained in another state and unable to contact a lawyer to correct the situation.

It is important to get it right in the criminal case. So it is important to choose a lawyer that understands and will consider this in advising a client and preventing irreversible consequences of a bad immigration plea.

If you have a case where the immigration consequences are an important of the most important consideration please give me a call at 213-893-8640 to discuss your case.

If you are interested in the immigration consequences of certain crimes, see my blog post here.

If you or a loved one have already plead and that plea has caused you negative immigration consequences, see my blog post about possible remedies here and here.


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