Padilla v. Kentucky - Why defense lawyers need to learn immigration law.
We’ve all done it. Every single one of us has handled a criminal case for a non-citizen. The case has been worked up, investigated, prepared for trial, negotiated with the State. You have investigated all defenses and together you and your client decide, “Let’s take the deal.”
Just before the plea the client asks, “Will I get deported for this?” Maybe they just ask, “Will I still be able to become a citizen?” “Will I still be able to get my green card?”
What is the answer? Do you know? Do you even answer the question? Do you simply refer them to an immigration lawyer?
Prior to March 31, 2010, the answer was much more simple. Most lawyers that I know did one of the following things:
- Refuse to give immigration advice.
- Refer them to an immigration lawyer.
- Give their best guess.
- Advise them that it “may have some impact on their immigration status.”
In the past, I have been guilty of telling a client that I didn’t think it would cause them to be deported. I have also told them that it might have some impact on their status. However, most of us have no real understanding of the immigration laws of this country. We are in the criminal law business, not immigration law.
THE FACTS OF PADILLA V. KENTUCKY
On March 31, 2010, the U.S. Supreme Court decided Padilla v. Kentucky. Mr. Padilla pled guilty to distributing marijuana in Kentucky. Padilla had been a lawful permanent resident of the United States for 40 years and served in the U.S. military during the Vietnam War. Padilla claimed that his counsel failed to advise him that he would be deported prior to entering his plea and further, was told he “did not have to worry about immigration status since he had been in the country so long.” Padilla relied on this advice and upon the entry of his plea, his deportation was virtually mandatory pursuant to 8 U.S.C § 1227.
Padilla alleged that the attorney’s failure to advise about the possibility of removal and the incorrect advice were ineffective assistance of counsel. The Supreme Court of Kentucky held that neither incorrect advice nor no advice at all would amount to ineffective assistance of counsel because it was related to a “collateral” consequence of his conviction.
The U.S. Supreme Court granted certiorari to decide whether, as a matter of federal law, Padilla’s lawyer had an obligation to advise him that the offense which he was pleading guilty to would result in his removal from the country. The Court held that to be constitutionally competent, his lawyer should have advised him that the conviction would result in his deportation.
WHY DOES THIS CASE MATTER TO US?
This case is important because it places an affirmative duty on the criminal defense lawyer to give immigration advice. If you haven’t read the case, you really need to so that you can decide for yourself what advice you want to give and decide what you need to do to educate yourself. There are many cases both old and new that could be challenged based on ineffective assistance of counsel relating to bad immigration advice. Our clients deserve to know what is going to happen to them as well.
Prosecutors and Judges ought to take a serious look at this case too. Judges want their pleas to be air-tight and prosecutors don’t want cases coming back with convictions being overturned. If there is clear and correct advise on the record during a plea, this will ensure that the pleas will withstand scrutiny by a higher court.
NO ADVICE v. INCORRECT ADVICE
The Solicitor General (Amicus Curiae) in the Padilla case urged the U.S. Supreme Court to conclude that Strickland only applies to affirmative misadvice. This was flatly rejected because it would encourage counsel to remain silent on immigration issues even when the information is readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement. The Court rejected this notion and went on to hold that counsel must inform his or her client whether his plea carries a risk of deportation.
IS IT ENOUGH TO SIMPLY ADVISE THAT A PLEA MIGHT RESULT IN DEPORTATION?
The opinion doesn’t really go so far as to answer this question. It might later be held that this is sufficient. However, lawyers should be careful because if the removal would be obvious from a quick read of the removal statute, I think it is pretty clear that this advise must be given. On convoluted immigration issues, where it is not so obvious, perhaps a general “maybe” warning might be sufficient.
ANALYSIS UNDER STRICKLAND’S TWO-PRONGED APPROACH
Since Strickland requires the defendant to show both deficiency and prejudice, it is unlikely that we will see any floodgates open up with massive amounts of pleas being challenged successfully. The cases that plea because the evidence of guilt was overwhelming will not be disturbed because the chances are if the defendant went to trial, he would have been convicted. However, the pleas that were entered on reduced charges where there is a likelihood that the defendant would have prevailed at trial, may become the subject of attack where a deportation subsequently happens.
WHAT SHOULD WE BE DOING TO ENSURE THAT WE ARE EFFECTIVE?
There will likely be seminars coming up that deal with immigration issues in some detail. I recommend you attend these. Judges and prosecutors should also consider this. Every lawyer should definitely read 8 U.S.C. § 1227 to see what offenses are likely to result in removal.
My quick reading of the removal statute has revealed several classes of crimes that I didn’t know would cause removal. Here are a few:
- Essentially all drug crimes.
- All crimes of domestic violence
- Crimes against children.
- Crimes involving firearms
- “Aggravated felonies” – this one requires more discussion because the definition of aggravated felony under federal law can encompass MANY crimes that you would think would be aggravated felonies, including certain misdemeanors.
- Crimes of “moral turpitude” where more one year or more is given as a sentence.
In summary, please read this case, read the removal statute and be careful about the advice you give.
Rob Leonard is a partner and Leonard, Rickman & Holloway, P.C. in Marietta, a past-president of the Cobb Bar Criminal Law Section and is a Vice-President of the Georgia Association of Criminal Defense Lawyers.
Source: Rob Leonard