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Consultation needed about immigration consequences

Where petitioner, who was in the United States on a student visa, pleaded guilty to a charge of possessing paraphernalia without being advised that the plea might result in her deportation, she is entitled to habeas corpus relief.


Following petitioner’s arrest, and after trial counsel referred her to an immigration attorney, who was retained to assist in her defense, “the prosecutor offered a plea agreement where, in exchange for pleading guilty, the Commonwealth would drop all charges to misdemeanors and impose no jail time in response to the plea. Neither Petitioner nor trial counsel consulted the immigration lawyer. A few days later, after the plea had been entered, Petitioner contacted immigration counsel and learned that the plea did have immigration consequences.

“Petitioner did not timely appeal that case and stands convicted of the various offenses, including a possession of paraphernalia offense. That conviction presents immigration consequences, which Petitioner seeks to avoid.” She seeks habeas corpus relief.


Under Strickland v. Washington, 466 U.S. 668 (1984), to prove her ineffective assistance claim, petitioner “must show that counsel’s representation fell below an objective standard of reasonableness … [and] … she must prove that she suffered prejudiced as a result.”

“When an immigration attorney has been retained to assist in the defense of a criminal case, the responsibility to ensure that immigration counsel has weighed in on a decision to enter a plea remains with trial counsel. The Sixth Amendment guarantee to effective counsel, as further defined by Padilla v. Kentucky, 559 U.S. 356 (2010), compels the conclusion that a plea under the undisputed material facts of this case did not satisfy that guarantee.

“While the parties may disagree as to the exact advice offered by trial counsel at the time of the plea, the record reflects that Petitioner was not advised that her plea would have immigration consequences as opposed to being advised of a possibility, or even a probability, of immigration consequences. Trial counsel did not know of consequences and in other circumstances would not need to know.

“Trial counsel acted well within the obligations to provide an effective defense of a criminal case while acknowledging his lack of knowledge with respect to immigration consequences. Trial counsel further met his responsibilities by referring Petitioner to an attorney who is well known (even to this Court) for her competence, if not expertise, in the area of immigration consequences of criminal convictions. Having retained the services of experienced immigration counsel, Petitioner should have not entered the plea without first consulting immigration counsel. …

“[T]rial counsel was obligated to provide Petitioner with the correct advice. The plea form stated: ‘That if I am not a citizen of the United States, and I plead guilty or no contest, am found to be guilty, or have the imposition of sentence deferred for participation in an authorized program, there may be consequences of deportation, exclusion from admission into the United States, or denial of naturalization pursuant to the laws of the United States.’

“The plain reading of the plea form notices counsel of potential immigration consequences. After being reminded of the potential of adverse immigration consequences, trial counsel should have remembered that the client had retained immigration counsel and should have consulted the immigration attorney he had coordinated representation with. Once the choice was made to not consult immigration counsel, trial counsel failed to advise Petitioner that she faced deportation.

“Petitioner has proven by greater weight of evidence the first prong of Strickland. … 

“To show prejudice here, Petitioner must demonstrate that ‘but for [her] counsel’s error, there is a reasonable probability that [s]he would not have pled guilty and would have insisted on going to trial.’ … 

“Petitioner testified that, had she known about the immigration consequences, she would have rejected the plea agreement and requested a deal without deportation implications or would have proceeded to trial. … 

“The Court finds her assertion credible and rational given the circumstances. At the time of the crimes, Petitioner was in the United States via an F-1 student visa, attending Northern Virginia Community College with a plan to transfer to George Mason University, admission guaranteed. She had entered this country in 2015, at age 16, after she won an academic scholarship. Currently, she is 22 years old, still lawfully in this county on the student visa. 

“Since her plea, she has not once returned to Vietnam out of fear that she would not be permitted to return to the United States. Moreover, Petitioner testified that, throughout the criminal proceeding, her immigration status was a concern and that she worried about her current status and her potential to become a permanent resident. Petitioner further expressed that she had always planned on living in the United States and getting her residency, studying English in Vietnam since she was 13 years old. 

“Thus, Petitioner felt she faced a far worse fate by leaving the United States and being deported to Vietnam than by taking the case to trial on the felony charge. … Petitioner has proven the second prong of Strickland.”

Writ granted. Conviction reversed.

Luong v. Kincaid, Case No. CL-2020-00577, Dec. 21, 2020, Fairfax Cir. Ct. (Tran) Opinion and Order. VLW 021-8-018, 10 pp.

VLW 021-8-018

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