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September 12, 2017 Top Story

Attorney’s Blunder Results in Client’s Detainment for Deportation

Bungling details early in a case can cause irreparable consequences

Catherine M. Chiccine

A recent appellate decision highlights the onerous cost that criminal laws may exact on defendants, as well as the major consequences a seemingly small error can impart later in a case.

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In United States v. Swaby, defense counsel’s misreading of a statute led to the defendant’s detainment for deportation as an aggravated felon. Swaby warns attorneys of the irreparable repercussions their mistakes can have on their clients, cautions ABA Section of Litigation leaders.

Automatic Deportation for Aggravated Felonies

The defendant, a Jamaican citizen residing in the United States with his family as a lawful permanent resident, was indicted for trafficking in counterfeit goods and conspiracy to traffic in counterfeit goods. The defendant’s appointed counsel determined immigration status would be a significant consideration for the defendant, who had a green card and intended to apply for U.S. citizenship. Under federal immigration law, any alien convicted of an aggravated felony is deportable.

Because he lacked expertise in immigration law, the defendant’s counsel contacted an immigration lawyer for advice. The immigration attorney recognized that to prevent deportation, the defendant must avoid conviction of an aggravated felony. When reviewing the criminal counterfeiting statute, the immigration attorney noticed that 18 U.S.C. § 2320 (a)(1) lacked deceit or fraud language, and thus was not an aggravated felony. The immigration attorney advised the defense attorney accordingly. 

Based on that advice, the defense attorney negotiated a plea agreement where the defendant would plead guilty to 18 U.S.C. § 2320(a)(1). The plea agreement contained boilerplate language warning about immigration consequences. At the defendant’s plea hearing, the court issued the defendant a general warning that signing the plea agreement could lead to his deportation.

As it turned out, the immigration attorney had reviewed an amended version of the statute that did not apply to the defendant’s case. The applicable version of 18 U.S.C. § 2320(a)(1) included deception language. As a result, the defendant unknowingly pleaded guilty to an aggravated felony that rendered him automatically deportable. Later, the Department of Homeland Security lodged an immigration detainer against the defendant and planned to deport him because he had pled guilty to an aggravated felony.

Counsel’s Deficient Performance Prejudices Defendant

While detained, the defendant alleged that he received ineffective assistance of counsel during his criminal proceedings in violation of the Sixth Amendment. The U.S. District Court for the District of Maryland denied the defendant’s petition. While defense counsel’s performance was deficient, it did not prejudice the defendant’s proceedings because the court had warned the defendant that his guilty plea could lead to his deportation, the court held.

The U.S. Court of Appeals for the Fourth Circuit reversed, vacated, and remanded, holding that defense counsel’s deficient performance prejudiced the defendant. The court noted that effective representation by counsel requires counsel to provide the correct advice when deportation consequences are clear, and defense counsel failed to do so. Adopting the standard used by the U.S. Courts of Appeals for the Second and Ninth Circuits, the appellate court held a defendant is prejudiced if a reasonable probability exists that he could have negotiated a plea agreement that did not affect his immigration. In this case, the defendant showed a single-minded focus in structuring the plea agreement to avoid immigration consequences. The government acquiesced to this agreement, demonstrating the defendant had a reasonable likelihood of negotiating a plea agreement that avoided deportation. In the alternative, the defendant showed a “reasonable probability” that he would have gone to trial rather than plead guilty to a mandatory deportation offense.

The district court’s general warnings did not cure defense counsel’s deficient performance, the appellate court held. Relying upon its holding in an identical case, U.S. v. Akinsade, the appellate court determined that a “general admonishment” about merely the risk of deportation is insufficient to cure counsel’s erroneous advice that the defendant’s crime would not render him categorically deportable.

“Onerous Costs” for Defendants

“This case represents a realistic example of how onerous the costs are that the current federal criminal laws exact—not just principally on defendants, but on related families, employers, and other invested members of the community,” comments Theodore G. Fletcher, Southwest Harbor, ME, cochair of the International Issues Subcommittee of the ABA Section of Litigation’s Criminal Litigation Committee.

“In criminal cases involving non-citizen defendants, counsel’s duty to the client includes a responsibility to fully understand, including by consulting with immigration counsel, the client’s risk of immigration consequences,” explains Emily Crandall Harlan, Washington, D.C., cochair of the Section of Litigation’s Criminal Litigation Committee. 

“When reviewing statutes, be certain you are using the applicable version that pertains to your case; where there may be doubt, be alert to the possible difference in that statute,” warns Fletcher. “This is a classic example of how an initial diagnosis has effects downstream,” he adds.  Attorneys should “bear in mind that almost all criminal convictions carry a wide array of collateral punishments, restrictions, and penalties; these are changing constantly and vary by state and international jurisdiction,” Fletcher concludes.

Attorneys Should Take Political Climate into Consideration

Swaby has another layer to its onion. Lawyers “need to look at this case in the context of a highly controversial immigration executive order, changed Department of Justice emphasis on deporting aliens, and an attorney general who has taken an aggressive posture toward enforcing immigration restrictions, and substantially enhanced guidance in seeking maximum penalties for criminal offenses,” Fletcher observes.

“The application of this decision to other, future cases is likely limited in the current political climate,” says Harlan. “In this case, the prosecution was willing to work with the defense to mitigate the risk of immigration consequences, and that ended up being a key part of the court’s analysis regarding whether the defendant had suffered prejudice. The prosecution was not under an obligation to work with counsel on this issue,” she explains. “Given the current administration’s emphasis on increasing immigration enforcement, defendants negotiating pleas in this political climate are seemingly less likely to encounter prosecutors who are willing or able to work with counsel the way the prosecutors did in this case,” she adds.

Catherine M. Chiccine is an associate editor for Litigation News.

Keywords: deportation, mandatory deportation, immigration, aggravated felony, counterfeit goods trafficking


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