On October 2, 2018, in a precedential opinion, the Sixth Circuit Court of Appeals held that the right to effective assistance of counsel in a criminal case extends to the plea-bargaining process under the Sixth Amendment of the Constitution. The Court ruled an immigrant who is seeking to vacate a guilty plea based on the ineffective assistance of his criminal attorney does not necessarily have to show that but for the ineffective advice he would have gone to trial. It is enough to show that the immigrant would have negotiated a better plea deal with an effective advice, thus counsel’s performance was prejudicial to the immigrant’s case.

In the case, Daynel L. Rodriguez-Penton, a permanent resident who came to the United States from Cuba, pled guilty to conspiring to distribute oxycodone. He received a sentence of 121-months imprisonment, which was later reduced to 97 months. William M. Butler was Rodriguez-Penton’s attorney during the criminal case. Rodriguez-Penton testified that the attorney never advised him about the immigration consequences of a guilty plea, and certainly did not advise him that he can be and will be deported if he pleads guilty. The attorney testified that he did advise the client about the deportation in general but he thought that because Rodriguez-Penton was a permanent resident, he could not be deported and in any case, Cubans do not get deported that often. During the plea hearing the district court did not advise Rodriguez-Perez about the risk of deportation either.

With the help of a new attorney, Rodriguez-Penton filed a motion with the district court to vacate and set aside his sentence based on the ineffective assistance of his criminal attorney. The district court denied the motion based on the finding that Rodriguez-Penton was not prejudiced by his attorney’s advice because he testified that he would not have gone to trial no matter what. Absent showing of prejudice, Rodriguez-Penton could not prevail on his motion to vacate the criminal sentence, the district court ruled.

On appeal, the Sixth Circuit held that Rodriguez-Penton does not have to show that he would have rejected the plea deal and went to trial if it wasn’t for the ineffective advice of his criminal attorney. Rather, it is enough if Rodriguez-Penton can show that he would have negotiated a better plea deal, arguably one, which excludes the risk of deportation, if his attorney would have properly advised him about the deportation consequences. The Court cited to recent Supreme Court decisions, which expanded the right to effective counsel in criminal cases to include plea deal negotiations.

To prevail on an ineffective assistance of counsel in a criminal case, the immigrant-defendant must show two things: that counsel’s representation fell below an objective standard of reasonableness; and there is a reasonable probability the outcome of the plea process would have been different had he received competent advice.

In the past, to meet the second prong, an immigrant had to show that but for the ineffective advice he would have gone to trial. Based on the Court’s decision in the Rodriguez-Penton case, from now on, it is enough for an immigrant to show that but for the ineffective advice he would have obtained a better plea deal.

While there is no constitutional right to a plea offer, the right to effective assistance extends to the plea-bargaining process.  If you have been charged criminally, you are an immigrant, and are facing possible deportation, contact RaslanPla & Company, LLC.

On September 18, 2018, the Sixth Circuit Court of Appeals held that the Constitution does not give an immigrant the right to re-litigate his case if he chose a bad attorney first time around. The Fifth Amendment’s due process clause does not grant an immigrant a right to effective counsel. It only gives an alien, facing removal, the right to be heard before an immigration court that honors their right to a fair hearing, but it does not shield the unsuspecting immigrant from the consequences of poor lawyering. According to the immigration attorneys at Colavecchio Law Office,” This form of judgement is entirely reliant on the judge and the final decision taken should not be undone under any circumstances, as the immigrant would be the one who would choose the judge; thus their world should be the final statement on the first go”.

In the case, Wissam Ibrahim Al-Saka, a Lebanese native appealed his deportation order. Al-Saka married a U.S. citizen while in Lebanon. He needed to stay married at least for two years to be eligible for permanent residency. However, just weeks after he entered the United States, the couple signed a religious divorce, and the state of Michigan annulled the civil marriage shortly thereafter. Al-Saka nevertheless stayed in the country, and a few years later he asked the immigration services to grant him a waiver of the two-year marriage requirement and grant him permanent residency. He argued, he entered into the marriage in good faith and deportation would cause hardship. After a hearing, the immigration judge denied the waiver request because the judge found Al-Saka’s testimony not credible.

Next, Al-Saka asked the Board of Immigration Appeals to review the immigration judge’s credibility finding along with his claim that he received ineffective assistance of counsel. He argued that his attorney failed to subpoena his ex wife, and did not hire an expert in Islamic matrimony, which would have aided his case. But the Board affirmed the immigration judge’s decision.

In a final attempt to evade deportation, Al-Saka appealed to the Sixth Circuit Court. This too, was unsuccessful. The Court rejected Al-Saka’s arguments and affirmed the Immigration Judge’s findings.

Because Al-Saka claimed that the conduct of his private lawyer violated the Fifth Amendment, the Court took the opportunity to write about the immigrants’ due process right or the lack thereof.

By law, removal proceedings are purely civil actions, although anybody who has had the misfortune to experience a removal hearing knows that deportation is more similar to a criminal case. Consequently, the Fifth Amendment’s right to counsel, which applies to criminal cases, does not apply to immigration cases. The Fifth Amendment only guarantees the right to have a fair hearing. For example, if a judge knew that the interpreter could not accurately translate the alien’s testimony and does not correct the problem, that would violate the alien’s due process right to have a fair hearing. But, poor lawyering does not count as due process violation, the Court held. As long as the government provides the opportunity for the alien to present his case before the immigration authorities, due process is satisfied.

The Court went on to state that if the alien “chooses a bad attorney” who might miss filing deadlines, or employs a bad litigation tactics, that is the alien’s fault and cannot give the alien the right to present his case one more time.

The Sixth Circuit Court’s ruling is the latest reminder that immigrants have little or no rights under the Constitution. It also highlights the severe consequences of being represented by a bad immigration attorney. While no court opinion gives guidance on how to avoid choosing a bad attorney, if you have any doubt about your current representation, or you are in need of representation in immigration-related cases please do not hesitate to contact our offices.

The Ohio Rules of Professional Conduct and the United States Citizenship and Immigration Services (USCIS) define a frivolous application as a document, which has no basis in law or in fact. (See 8 CFR § 1003.102 (j); Prof. Cond. R. 3.1).  A frivolous immigration application has no merit and has virtually no chance of achieving the immigrant applicant’s goal. It can, however, hurt the immigrant’s chances of receiving an immigration benefit in the future.  It can also cause the immigrant being put in removal proceedings, and ultimately leads to deportation. Thus, the negative consequences to the immigrant are enormous.

Some immigration attorneys “justify” this unethical behavior by stating that while the frivolous application is making its way through the USCIS system, which in the immigration context can be years, the immigrant is receiving the benefit of living in the United States.

The Ohio Supreme Court in its interpretation of the Ohio Rules of Professional Conduct does not agree.  Instead, the Ohio Supreme Court has repeatedly held an attorney has a duty to not make a false statement of fact or law to a tribunal. (Prof. Cond. R. 3.3). A legal argument, which is based on a knowingly false representation of law, constitutes dishonesty towards the tribunal. (See Official Comment [4] to Rule 3.3).

Furthermore, the USCIS has held the attorney’s signature on any filing, application, motion, or appeal constitutes a certification by the attorney that he or she has read the document and to the best of the attorney’s knowledge the document is well-grounded in fact and is warranted by existing law or by a good-faith argument for the extension, modification, or reversal of existing law, and is not filed for any improper purpose. (CFR § 1003.102 (j)).

Please continue to follow our website or schedule a consultation if you believe you are a victim of a frivolous application.