In Santos v. Kolb, 880 F.2d 941 (7th Cir. 1989), a Cuban national entered guilty pleas in a Wisconsin state court to three counts of burglary. At the time of his appeal from the denial of a writ of habeas corpus in federal court, immigration authorities had made no final decision on deportation or on the petitioner's request for political asylum.
At his post-conviction hearing in a Wisconsin state court, the petitioner claimed that he had been denied the effective assistance of counsel.
Petitioner moved for postconviction relief in the Wisconsin state trial court, alleging that his trial counsel's failure to advise him of the immigration consequences of conviction and the failure to seek a judicial recommendation against deportation deprived him of his right to effective assistance of counsel. The trial court denied relief without a hearing. The Wisconsin Court of Appeals affirmed. 880 F.2d at 942.
On habeas corpus, the petitioner claimed that he would not have pleaded guilty if he had known of the pertinent deportation law.
He argued that had he known of the immigration consequences of conviction or that a judicial recommendation against deportation could be sought, he would not have pleaded guilty without first seeking such relief, if he would have pleaded guilty at all. 880 F.2d at 942.
The Seventh Circuit held that the Sixth Amendment obligations do not extend to advising a client about the collateral consequences of a plea, including deportation.
In a recent and similar case, we held that it was not ineffective assistance of counsel for an attorney to fail to inform his client of the immigration consequences of a conviction for a drug offense. In United States v. George, 869 F.2d 333 (7th Cir. 1989), we stated:
... A deportation proceeding is a civil proceeding which may result from a criminal prosecution, but is not a part of or enmeshed in the criminal proceeding. It is collateral to the criminal prosecution. While the Sixth Amendment assures an accused of effective assistance of counsel in "criminal prosecutions," this assurance does not extend to collateral aspects of the prosecution. 880 F.2d at 944.
The Seventh Circuit stressed that the critical issue was not whether the lawyer behaved adequately but whether the lapse, if a lapse occurred, was constitutional in dimension.
The issue is not whether defense counsel erred in not discussing deportation, but whether his error amounted to a constitutional violation. ... The failure of petitioner's counsel to inform him of the immigration consequences of his guilty plea, however unfortunate it might be, simply does not deprive petitioner of the effective assistance of counsel guaranteed by the Constitution.
Moreover, the fact that some jurisdictions have enacted statutes to guard against the failure to inform a defendant regarding deportation does not mean that the providing of such information is constitutionally mandated. 880 F.2d at 944-45.