Ineffective Assistance of Counsel Under People v. Pozo: Advising Non-Citizen Criminal Defendants of Possible Immigration Consequences in Criminal Plea Agreements
Lindsay VanGilder
Tens of thousands of non-citizen criminal defendants are removed from the United States each year. The Sixth Amendment of the United States Constitution and United States Supreme Court jurisprudence guarantee that these non-citizen criminal defendants will have effective assistance of criminal defense counsel, whether they elect to proceed to trial or decide to plead guilty. Although prevailing professional norms require that criminal defense counsel advise non-citizen defendants of possible immigration consequences of plea agreements, many courts do not impose a duty to advise on defense counsel. In fact, many courts deem immigration consequences to be collateral consequences rather than direct consequences of plea bargains and, therefore, hold that the failure to advise non-citizen criminal defendants of possible deportation consequences does not constitute ineffective assistance of counsel. Colorado stands as an important exception to the majority rule. In People v. Pozo, the Colorado Supreme Court recognized that criminal defense counsel may be required to investigate relevant immigration law and advise non-citizen clients of potential deportation consequences of guilty pleas to avoid facing ineffective assistance of counsel claims. This Note argues that, like Colorado, every jurisdiction should recognize that an attorney’s failure to advise a non-citizen criminal defendant of the potential immigration and deportation consequences of a guilty plea may constitute ineffective assistance of counsel. Colorado’s rule is more consistent with United States Supreme Court precedent and prevailing professional norms than the collateral consequences doctrine adopted in other jurisdictions. Colorado’s rule also takes a more realistic approach to the concerns and interests of non-citizen criminal defendants.