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Informal Opinion: Client Is Prejudiced by Erroneous Immigration Advice Even When No Bona Fide Defense to Criminal Charges Exists

By Nadine Wettstein

Is a criminal defense attorney constitutionally ineffective when he provides erroneous immigration advice, leading the client to accept a plea, where the client had no real defense at trial? Can a defendant establish prejudice where his only hope at avoiding deportation was that something unexpected and unpredictable would happen at trial to lead to an acquittal? Would a rational defendant, in the hope of preserving his immigration status, pass up a plea offer that assured him less prison time rather than “throwing a ‘Hail Mary’ at trial?”

The Supreme Court has answered with a resounding “yes” to all of these questions. A defendant is prejudiced by his attorney’s erroneous immigration law advice, even if his chances of avoiding deportation are minimal, the Court held. For a defendant for whom remaining in the United States is determinative, it can be rational to reject a plea offer, even if conviction at trial is a near certainty and means more prison time, if going to trial provides ev

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