NCJ Number
136270
Journal
Criminal Justice Journal Volume: 12 Issue: 2 Dated: (Spring 1990) Pages: 185-191
Date Published
1990
Length
7 pages
Annotation
This article reviews the scope of advisement required by Section 1016.5 of the California Penal Code for individuals faced with the threat of deportation and expulsion from the United States.
Abstract
In the past, most misdemeanor convictions against noncitizens did not come to the attention of Immigration and Naturalization Service (INS) agents. Because the Anti-Drug Abuse Act of 1988 now directs vigorous enforcement of expulsion provisions contained in the Immigration and Nationality Act of 1952, the INS has significantly increased deportation efforts against noncitizens convicted of crimes in the United States. A series of recent decisions by California's appellate courts provides a vehicle for noncitizens to vacate a criminal plea. To do so, there must be a showing that proper advisement pursuant to Section 1016.5 of the California Penal Code was not given, that defense counsel was ineffective for its failure to advise the client as to possible deportation consequences, or that defense counsel failed to adequately research appropriate sentencing strategies. Individuals facing the threat of deportation and expulsion from the United States are increasingly charging their criminal defense attorneys with negligent representation. The message is clear that in a case where the defendant is not a U.S. citizen, the defense attorney should closely examine how a plea may affect the defendant's immigration status. A mere advisement that deportation may be a consequence is not sufficient. 24 footnotes