Giving Warning- Representing a Noncitizen in a Criminal Proceeding

Topic:
The Sixth Amendment obligates a lawyer who represents a noncitizen in a criminal matter to advise the client about the risk of deportation. A lawyer who fails to so advise a client acts incompetently and may be subject to disciplinary sanction.

Although not a lawyer disciplinary action, the United States Supreme Court decision in  Padilla v. Kentucky , No. 08-651 (March 31, 2010), will have an impact on lawyer regulators throughout the country. 

 Jose Padilla, a native of Honduras, had been a lawful permanent resident of the United States for more than forty years. Padilla was a member of the Armed Forces who served in the Vietnam War. He faced deportation back to Honduras, however, after pleading guilty to the transportation of a large amount of marijuana, about 1,000 pounds, in his tractor-trailer in the Commonwealth of Kentucky. He had been charged in Hardin County with trafficking in marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer without a weight and distance tax number. On advice from his lawyer, he entered a guilty plea with respect to the three drug charges in exchange for dismissal on the final charge. Padilla claimed that his trial attorney not only failed to advise him of the fact that he would be deported as a consequence prior to his entering the plea, but also told him that he, “did not have to worry about immigration status since he had been in the country so long.” After he was given a five-year prison sentence, the deportation order was entered against him.

Padilla sought post conviction relief before the Kentucky Court of Appeals. That court eventually agreed with Padilla, reversed the conviction, and remanded the case for an evidentiary hearing. Prosecutors took an appeal to the Kentucky Supreme Court. That tribunal reversed the Court of Appeals, holding that any collateral consequences of advice by counsel was outside the scope of the guarantee of the Sixth Amendment's right to counsel. Thus, according to the Kentucky Supreme Court, an attorney’s advice on the consequences of a plea with respect to immigration status was not a constitutional requirement and could not constitute Sixth Amendment ineffectiveness. Last year, the United States Supreme Court granted certiorari in the case in order to decide whether, as a matter of federal law, Padilla’s trial attorney had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.

 A majority of the United States Supreme Court, in an opinion authored by Justice Stevens, with Justices Kennedy, Ginsburg, Breyer, and Sotomayor joining (Justice Alito filed a separate concurring opinion joined by Chief Justice Roberts), ruled that that constitutionally competent counsel would have advised Padilla that his conviction for drug distribution made him subject to automatic deportation. Whether Padilla was actually entitled to relief depended on whether he had been prejudiced, a matter that was not addressed in the decision.

 The majority ruled that the landscape of federal immigration law had changed dramatically over the past 90 years. While once there was only a narrow class of deportable offenses, and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The “drastic measure” of deportation or removal is, according to the high court, virtually inevitable for a vast number of noncitizens convicted of crimes. The Court noted that:

 [The] changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part (footnote omitted)—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

 It is clear that, before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel. The Supreme Court of Kentucky, however, had rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only collateral matters, i.e., those matters not within the sentencing authority of the state trial court. In Kentucky’s view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.”

 The United States Supreme Court noted that the Kentucky court was far from alone in holding the view that immigration advice is merely collateral to a criminal proceeding.  Nevertheless, the Supreme Court ruled that it had never applied any distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under the Court’s leading decision in  Strickland v. Washington, 466 U. S. 668 (1984).  The Court noted that, although removal proceedings are civil in nature, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because such a distinction is ill-suited to evaluating any Strickland  effective assistance of counsel claim concerning the specific risk of deportation, the Court held that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Importantly, the Court noted that it had previously recognized that “[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.”

  Strickland established a two-prong analysis in analyzing ineffectiveness of counsel claims. To satisfy that two-prong inquiry, counsel’s representation must fall below an objective standard of reasonableness and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Interestingly, the Court ruled that constitutional deficiency is necessarily linked to the legal community’s practice and expectations. The weight of prevailing professional norms in the immigration practice community, therefore, supports the view that criminal counsel must advise a client regarding any deportation risk. The Court recognized that there could undoubtedly be numerous situations in which the deportation consequences of a plea are “unclear”. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was for Padilla, the duty to give correct advice is equally clear. The Court, accepting Padilla’s allegations as true, believed that he had sufficiently alleged a constitutional deficiency that satisfied Strickland’s first prong. Whether he could satisfy the second prong, that he had been prejudiced, was left for the Kentucky courts to consider.

 Justice Scalia filed a dissenting opinion, in which Justice Thomas joined. Justice Scalia believed that “affirmative misadvice” about immigration consequences did not render an attorney’s assistance in defending against a prosecution constitutionally inadequate. Further, he did not subscribe to the notion that the Sixth Amendment requires counsel to warn immigrant defendants that a conviction may render them removable. In his opinion, statutory provisions could have remedied such concerns in a more targeted fashion, and without producing permanent, and “legislatively irreparable, overkill.” He wrote:

If the subject had not been constitutionalized, legislation could specify which categories of misadvice about matters ancillary to the prosecution invalidate plea agreements, what collateral consequences counsel must bring to a defendant’s attention, and what warnings must be given (footnote omitted). Moreover, legislation could provide consequences for the misadvice, nonadvice, or failure to warn, other than nullification of a criminal conviction after the witnesses and evidence needed for retrial have disappeared. Federal immigration law might provide, for example, that the near-automatic removal which follows from certain criminal convictions will not apply where the conviction rested upon a guilty plea induced by counsel’s misadvice regarding removal consequences. Or legislation might put the government to a choice in such circumstances: Either retry the defendant or forgo the removal. But all that has been precluded in favor of today’s sledge hammer.

 According to the Bowling Green Daily News, Padilla remains in the U.S. and await a Kentucky determination as to whether or not the inaccurate advice of his attorney had a prejudicial effect. “All criminal defendants deserve accurate advice and we’re pleased the Supreme Court believes so as well,” said Tim Arnold, post-trial division director for the Kentucky Department of Public Advocacy, which represented Padilla before the state Supreme Court.

  JAMES J. GROGAN, DACC, Illinois ARDC