(dissenting) :
The judgment of conviction should be set aside on two grounds.
First, appellant did not receive the effective assistance of counsel guaranteed by the Sixth Amendment. Before appellant entered his plea, he was “entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948). Appellant’s counsel did not discharge these responsibilities. He failed to inform himself on the facts and the law. He acted “in default of knowledge that reasonable inquiry would have produced, and hence in default of any judgment at all.” Brubaker v. Dickson, 310 F.2d 30, 39 (9th Cir. 1962), and authorities cited. See also Wilson v. Rose, 366 F.2d 611, 614-615 (9th Cir. 1966).
*73Appellant’s principal concern was that he might lose his status as an alien lawfully admitted for permanent residence, and be deported. Appellant’s counsel thought the sentencing judge could spare appellant from deportation. He testified, “the main thing I was banking on was trying to get sympathy from the judge to allow [appellant] to remain in the United States, because this was obviously his wish.” Accordingly, counsel’s only appeal on appellant’s behalf at sentencing was that the court “allow him to maintain his alien residence status in the United States.”
The court had no power to do what counsel asked. 8 U.S.C. § 1251(b) (1964) authorizes the sentencing court to recommend that an alien not be deported. Subsection (b), however, applies only in eases arising under 8 U.S.C. § 1251(a) (4) (1964), which relates to the general category of “crimes involving moral turpitude.” 8 U.S.C. § 1251 (a) (5) (1964) provides that “any alien * * * shall * * * be deported who * * * has been convicted under section 1546 of Title 18,” the statute under which appellant was charged. Thus, because subsection (b) was not applicable to appellant’s case, the court had no authority to recommend that he not be deported. This was clear from our decision in Jew Ten v. Immigration & Naturalization Service, 307 F.2d 832, 834-835 (9th Cir. 1962).
According to his own testimony, counsel’s legal research consisted of stopping at the county law library on his way to court to reread 18 U.S.C. § 1546. Asked whether he had also checked the deportation provisions of the Immigration and Naturalization Act to determine whether a conviction under 18 U.S.C. § 1546 would subject the defendant to deportation, counsel responded, “(that’s) like asking me did I check everything in the world.”
Either appellant’s counsel was unaware of subsection (a) (5), mandating appellant’s deportation on conviction, or he did not grasp its plain meaning. Obviously he was unaware of our decision in Jew Ten. His entire effort on appellant’s behalf was directed at achieving a legally impossible result. The course he adopted was inherently and inevitably self-defeating. It made appellant’s deportation certain. Appellant’s only possibility of avoiding deportation lay in standing trial.
Appellant’s attorney testified that “as far as I could see [appellant] had no defense.” He based this conclusion entirely upon conversations with appellant (an 18-year-old Mexican with a fifth grade education, who did not speak English and had no prior experience with the criminal law), and with the Immigration agent and the Assistant United States Attorney. He testified, “I did not check any outside record. I depended on what the Defendant told me and what the other two officers told me.” The conversations with the two government officers seem to have taken place in the courtroom during a recess. Appellant’s counsel testified that he also looked at the officers’ files, apparently at the same time, but could not recall what they contained.
The government’s evidence consisted of a statement from the appellant, and possible testimony from Mr. Alzaga, the alien to whom the false immigration document allegedly was delivered. Appellant’s counsel was not sure whether he saw appellant’s statement. He did not investigate the circumstances in which appellant gave the statement, although it was given after appellant had been in custody for some twelve hours without being taken before a United States Commissioner. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). He did not interview Mr. Al-zaga to determine whether he would testify against appellant and, if so, what his testimony would be, although Mr. Alzaga was available since he was also in federal custody, and his willingness to testify for the government was at least doubtful since he too was charged with an offense and was awaiting trial.
*74The question is not whether appellant’s counsel was qualified by training and experience to render effective legal assistance to appellant, but whether he did so. Brubaker v. Dickson, 310 F.2d, supra at 37. The record demonstrates that he did not.
Second, appellant’s conviction should be vacated because he was not aware of the consequences of his plea. “[A] plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). See Munich v. United States, 337 F.2d 356, 359 (9th Cir. 1964); cf. Heiden v. United States, 353 F.2d 53 (9th Cir. 1965).
As noted above, appellant’s deportation was required by 8 U.S.C. § 1251(a) (5) upon conviction under 18 U.S.C. § 1546. Appellant was not advised of this fact. On the contrary, he was told that deportation, though probable, might still be avoided.
It is true that United States v. Parrino, 212 F.2d 919 (2d Cir. 1954), holds that deportation for a crime involving moral turpitude — the ground for deportation now appearing in section 1251(a) (4), to which section 1251(a) does apply — -is only a “collateral” consequence of conviction of such a crime. Porrino is distinguishable since in the present case deportation was mandatory rather than discretionary. In any event, “the vigorous dissent of Judge Frank more likely reflects the present attitude of the federal judiciary.” 8 Moore, Federal Practice ¶ 32.07 [3] at 32-47 (1967).
Surely it would be pure fiction to say that the result which 8 U.S.C. § 1251 (a) (5) states must follow conviction under 18 U.S.C. § 1546 is nonetheless not a “consequence” of such a conviction. Such a holding would drain the substance from the requirement that a guilty plea may be accepted only if made “with full understanding of the consequences.”