§ 3.1 Overview

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 3.1 OVERVIEW

§ 3.1-1 Scope

This chapter is written for a criminal defense attorney representing a noncitizen in a criminal proceeding, as a reference outline to determine what immigration consequences a guilty or no-contest plea or a guilty finding may have on the client. It is strongly suggested that the criminal defense attorney or the client hire an immigration attorney, as immigration laws are constantly evolving and changing. "[W]e are in the never-never land of the Immigration and Nationality Act, where plain words do not always mean what they say." Yuen Sang Low v. Attorney Gen. of U.S., 479 F2d 820, 821 (9th Cir), cert den, 414 US 1039 (1973).

PRACTICE TIP: Do not call an immigration attorney or post a question online and ask whether a certain conviction might or might not lead to removal. This is a very complicated issue and needs careful review. Keep in mind that a wrong conclusion may result in serious consequences for the noncitizen: loss of family, torture, or death if the noncitizen is deported.

The Oregon Supreme Court previously held that a criminal defense attorney was required to advise his or her client only that the client may be removed from the United States as a result of a guilty or no-contest plea or a guilty finding. The attorney was not required to inform the client of the likelihood of removal. Gonzalez v. State, 340 Or 452, 459-60, 134 P3d 955 (2006), abrogation recognized by Chavez v. State, 364 Or 654, 659-61, 438 P3d 381 (2019). But the United States Supreme Court, under the Sixth Amendment, imposes a higher obligation. "When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear," the attorney must advise the client that a guilty plea will subject the client to deportation. Padilla v. Kentucky, 559 US 356, 369, 130 S Ct 1473, 176 L Ed 2d 284 (2010) (footnote omitted). Since Padilla, a defense attorney's obligation is clear. The defense attorney has to either succinctly advise the noncitizen defendant of the immigration consequences or retain an experienced immigration attorney to advise the defendant and the defense attorney. A lawyer's failure to provide such advice may affect the time in which the defendant must file a petition for postconviction relief. See § 3.1-2.

PRACTICE TIP: Clearly, one of the most important questions a criminal defense attorney must ask is whether the client is a U.S. citizen. If not, the attorney must then determine what the client's immigration status is. The attorney must not assume the client is a U.S. citizen merely because the client looks or sounds like he or she was born here. Many noncitizens came to the United States at a very early age and

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