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Post Conviction

Post Conviction >

Proposed new rule of law for Oregon PCR (Post Conviction Relief) for legal permanent residents misadvised of the immigration consequences of "aggravated felony" convictions;

LEGAL ISSUE PRESENTED

(A.) Is it affirmative misadvice by criminal defense counsel to advise his legal permanent resident (LPR) client that he may be deported as a result of a contemplated plea to an "aggravated felony" charge when, in reality, the LPR is legally required by the immigration laws to be banished as a direct consequence and inevitable "mandatory minimum" result of the plea?

PROPOSED RULE OF LAW

(A.) It is affirmative misadvice constituting ineffective assistance of counsel under the Oregon Constitution for criminal defense counsel to advise an LPR that he may be deported as a result of a guilty plea to an aggravated felony charge that, as a "mandatory minimum" immigration consequence of his conviction, will require his banishment by the immigration authorities from the United States.

Affirmative Misadvice

Long v. State of Oregon, 130 Or APP 198, 880 P.2d 509 (1994), held that once criminal defense counsel begins to advise on a "collateral area of the law," he must do so completely and accurately. Criminal defense counsel’s advice in Mr. Immigrant’s case was inaccurate and incomplete. Lyons v. Pearce, 298 Or 554, 694 P.2d 969, required criminal defense counsel to know basic immigration consequences and to protect the immigrant defendant from potentially avoidable deportation consequences, stating at 564, 565, 567, 568:

12. A deported alien may be required to sever family ties, become impoverished and return to a society in which he no longer can function and may, indeed, face life-threatening conditions. It portends drastic consequences in many cases. It is in all cases "a life sentence of banishment," Jordan v. DeGeorge, 341 US 223 … This necessarily places a great responsibility on those attorneys who represent persons who may be subject to deportation …

17. We hold that failure of counsel to request from the court a recommendation against deportation where the defendant, in fact, was subject to deportation as a result of his conviction rendered counsel’s assistance constitutionally inadequate.

This court should require criminal defense counsel to know INA 101(a)(43) et seq, that is, what convictions will require the banishment of their legal permanent resident clients from the United States forever so that a plea to such a charge is knowingly and voluntarily made by the criminal defendant.

This court should require criminal defense counsel to know INA 101(a)(43) et seq, that is, what convictions will require the banishment of their legal permanent resident clients from the United States forever so that a plea to such a charge is knowingly and voluntarily made by the criminal defendant.

A. (a) GONZALEZ IS INAPPOSITE TO THIS PROPOSED NEW RULE

Gonzalez v. State of Oregon, 340 Or 452 (2006), decided Gonzalez was only possibly, as a matter of fact, going to be deported. The legal decision follows from that factual conclusion. It is inapposite to Mr. Immigrant’s claim that he had been affirmatively misadvised of the immigration consequences of his conviction. The Oregon Supreme Court held that under the facts and law as presented by the litigation in Gonzalez, there was no affirmative misadvice to Gonzalez, because he was accurately informed of the immigration consequences of his conviction and because there was no proof submitted by Gonzalez that "aliens" committing deportable crimes are in fact deported by ICE with the substantial assistance and zealous cooperation of Oregon law enforcement, jail, probation officers and prosecutorial officials.

This is the argument counsel intends to present in the above circumstances when seeking to vacate a conviction where an "alien" was misadvised by criminal defense counsel of the immigration consequences of his criminal conviction and subsequently mistakenly entered into an involuntary plea of guilty .

PCR cases should be fought as soon as the "alien" learns of the affirmative misadvise by criminal defense counsel. The general rule is that the statute of limitations on post conviction relief cases in the State of Oregon is two years from the date of the judgment on the criminal case. There may be exceptions to this rule. Exceptions however are very difficult to establish.
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