Unauthorized Alien Ability to Claim Ineffective Assistance of Counsel, Arizona Petitions Supreme Court to Decide

The Arizona Attorney General recently petitioned the U.S. Supreme Court to decide that an unauthorized alien is categorically barred from establishing an ineffective assistance of counsel claim based on erroneous advice regarding the immigration consequences of a plea agreement.

In June 2013, state police arrested Hector Nunez-Diaz for operating a vehicle and failing to provide a driver’s license. On a search incident to arrest, police discovered drugs on Nunez-Diaz’s person, for which he was subsequently charged with two class-four felonies. During Nunez-Diaz’s detention, authorities discovered his identity as an unauthorized alien and U.S. Immigration and Customs Enforcement placed a detainer on him.

After his arrest, Nunez-Diaz retained private counsel who secured Nunez-Diaz a plea to a single class-six felony. The plea agreement included a written warning that Nunez-Diaz’s “plea or admission of guilt could result in my deportation” and the plea colloquy included an oral warning to that same effect. Shortly after the state trial court accepted Nunez-Diaz’s plea and sentenced him to 18 months’ unsupervised probation, ICE officials took Nunez-Diaz into custody and began the deportation process.

Nunez-Diaz subsequently filed a petition for post-conviction relief, alleging ineffective assistance of counsel. His plea alleged his attorney made “an affirmative representation to Mr. Nunez Diaz that the plea would not have significant immigration consequences” and failed to secure better plea. After an evidentiary hearing on the motion, the trial court found that Nunez-Diaz “would not have signed the plea if he was adequately advised of the immigrations consequences.”

In a divided opinion, the Arizona Court of Appeals affirmed the trial court’s decision. So did the Arizona Supreme Court, issuing three separate opinions between the court’s seven justices. A four-member majority of the court held Nunez-Diaz’s prevailed because the ineffective assistance of his counsel sufficiently prejudiced him under the U.S. Supreme Court’s holding in the 1984 case Strickland v. Washington. The Office of the Arizona Attorney General then filed a petition for a writ of certiorari to the U.S. Supreme Court.

The Arizona Attorney General contends, in part, the Supreme Court should decide Nunez-Diaz is categorically barred from establishing ineffective assistance of counsel claim because they are without any legal right to remain in the United States. The petition relies on the Supreme Court’s opinion in Lockhart v. Fretwell, explaining there is no Strickland prejudice “if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” It follows, the petition reasons, that unauthorized aliens “who have no right to remain in the United States…do not suffer cognizable prejudice from deficient immigration-law advice that hastens their departure.”

The petition claims the U.S. Courts of Appeal for the Fourth, Fifth, and Eleventh Circuits agree with its position. In contrast, the petition claims the highest courts of Arizona, Iowa, and Massachusetts, along with two federal district courts, disagree. Given that split, the Arizona Attorney General asks the Supreme Court to decide the issue.

FEDagent will report on the status of Arizona v. Nunez-Diaz, when the Supreme Court decides whether to grant the Arizona Attorney General’s petition. Response briefs to the petition are due January 21, 2020.

Review all Supreme Court Filings in Arizona v. Nunez-Diaz.


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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