Appeal from an order of the United States District Court for the Northern District of New York, denying plaintiff's motion pursuant to 28 U.S.C. § 2255 to vacate sentence. Order vacated and remanded.
Before: OAKES and KEARSE, Circuit Judges, and BARTELS, District Judge.*fn*
Plaintiff Lyonel Janvier, an alien who has served a term of imprisonment for smuggling and counterfeiting offenses, appeals from an order of the United States District Court for the Northern District of New York, Roger J. Miner, then- District Judge, denying his motion pursuant to 28 U.S.C. § 2255 (1982) to vacate his sentence. Janvier contended that he had been deprived of his Sixth Amendment right to effective assistance of counsel at his sentencing by reason of his counsel's failures (1) to request, pursuant to 8 U.S.C. § 1251(b) (1982), that the sentencing judge recommend, either at sentencing or within 30 days thereafter, that Janvier not be deported as a result of his convictions, and (2) to advise Janvier that he would be deportable as a result of his convictions unless the sentencing judge recommended against deportation not later than 30 days after sentencing. The court denied the § 2255 motion on the ground that the alleged deprivation of the effective assistance of counsel did not occur at a critical stage of the criminal prosecution. On appeal, Janvier contends that this ruling was erroneous. We agree, and we vacate the order and remand for further proceedings.
Janvier, a Haitian citizen, is a permanent resident alien who entered the United States lawfully in February 1981. In October 1982, he was arrested at the Canadian border and was charged with possession of $20,340 in counterfeit United States currency and of smuggling that currency into the United States, in violation of 18 U.S.C. §§ 472 and 545 (1982). Following a jury trial, Janvier was convicted as charged and was sentenced on January 21, 1983, to a total of four years' imprisonment. Janvier served the required portion of his prison term and was paroled in 1984.
As a result of his convictions and sentencing, Janvier apparently became subject to deportation pursuant to 8 U.S.C. § 1251(a)(4) (1982), which provides for the deportation, upon order of the Attorney General of the United States, of any alien who "is convicted of a crime involving moral turpitude committed within five years after entry" into the United States and is sentenced to or serves a prison term of one year or longer. Accordingly, upon his parole Janvier was released into the custody of the Immigration and Nationalization Service ("INS") for deportation.
Section 1251(b) of 8 U.S.C., however, provides that § 1251(a)(4) is inapplicable if the sentencing judge, either at the time of sentencing or within 30 days thereafter, and after giving due notice to the appropriate authorities, recommends against deportation. Janvier apparently learned of the thrust of § 1251 only after the expiration of the 30-day period in which § 1251(b) relief against deportation could be obtained, and he filed his present motion for § 2255 relief after his release from prison. In support of his motion, he submitted the May 25, 1984 affidavit of Thomas J. Spargo, Esq., his appointed counsel at trial and sentencing.
Spargo stated that he had been unaware of § 1251(b) when he represented Janvier. Thus, Spargo never asked the sentencing judge to recommend against the deportation of Janvier. Nor did he advise Janvier that such relief against deportation might be available. Indeed, Spargo was unaware of § 1251(a)(4), and believes he may even have communicated to Janvier the opinion that the convictions would not make Janvier deportable. Relying on these assertions, which the district court noted were undisputed, Janvier contended that he had been deprived of his Sixth Amendment right to the effective assistance of counsel at sentencing. He requested that his 1983 sentence be vacated, that he be resentenced with the assistance of new counsel, and that the court hold a hearing at which he could present evidence in support of his request for a judicial recommendation against the use of his convictions as grounds for his deportation.
In a Memorandum-Decision and Order ("Decision") dated July 31, 1985, the district court declined to reach the question of whether counsel's assistance had been defective, ruling instead that the alleged ineffective assistance had occurred at a time other than a critical stage of a criminal proceeding. First, while recognizing that sentencing is such a critical stage and that a defendant has a Sixth Amendment right to the effective assistance of counsel at sentencing, the court reasoned that since § 1251(b) allows a recommendation against deportation to be made up to 30 days after sentencing, "§ 1251(b) relief exists independent of any sentence imposed upon a criminal defendant, and a failure by counsel to request it cannot be regarded as ineffective assistance at the sentencing phase, whether or not the application could have been made at the time of sentence." Decision at 5 (footnote omitted). Second, the court held that counsel's failure to pursue § 1251(b) relief after sentence had been imposed could not be the basis for an ineffective assistance challenge, since the Sixth Amendment right to counsel attaches only to criminal proceedings, and deportation is a civil proceeding. Thus concluding that Janvier had not been denied effective assistance of counsel at a critical stage of his criminal prosecution and that his sentence was therefore not "'imposed in violation of the Constitution or laws of the United States,'" Decision at 7 (quoting § 2255), the district court denied Janvier's motion. This appeal followed.
As the district court recognized, it it well established that a defendant to a criminal prosecution has a Sixth Amendment right to the effective assistance of counsel at all critical stages of the prosecution where his substantial rights may be affected, and that sentencing is one such stage. Mempa v. Rhay, 389 U.S. 128, 134, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967); see McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). It is similarly established that deportation proceedings are civil proceedings to which the constitutional protections applicable to criminal prosecutions do not apply. Abel v. United States, 362 U.S. 217, 237, 4 L. Ed. 2d 668, 80 S. Ct. 683 (1960) ("deportation proceedings are not subject to the constitutional safeguards for criminal prosecutions"). The principal question before us on this appeal thus is whether the recommendation envisioned by § 1251(b) should be deemed part of the sentencing stage of the criminal prosecution rather than part of the ensuing deportation proceedings.
A. The Relationship of § 1251(b) to Sentencing
Section 1251 of 8 U.S.C. provides, in pertinent ...