Lawyers must tell immigrant clients of deportation risk (Part 1)

Lawyers must tell immigrant clients of deportation risk (Part 1)

Philippine News : Friday, April 23 2010

JUSTICE John Paul Stevens wrote, “It is our responsibility under the Constitution to ensure that no criminal defendant— whether a citizen or not—is left to the mercies of incompetent counsel. On March 31, 2010, in Padilla v. Commonwealth of Kentucky, the U. S. Supreme Court overturned a contrary decision by the Supreme Court of Kentucky in a 7-2 decision with the opinion written by Justice Stevens.
The Court has potentially paved the way for significant changes in the way criminal trials for immigrant defendants are handled. The court emphasized that the risk of deportation must be considered an “integral part” of the possible penalty for noncitizen defendants. The Court especially noted that in the current political atmosphere, deportation is now an inevitable consequence for a “vast number” of convicted immigrants.

Jose Padilla is a legal permanent resident originally from Honduras, who has resided in the U.S. for nearly 40 years and served in the U.S. Armed Forces during Vietnam. In 2001, however, Padilla was indicted on three drug counts (two drug possession misdemeanors, and one drug trafficking felony) and one tax-related crime for an unmarked vehicle. Padilla pleaded guilty to the drug offenses and the tax offense was dropped.

But before agreeing to the negotiated plea, Padilla specifically asked his attorney whether his plea might have consequences for his immigration status. His attorney responded that he “did not have to worry about immigration status since he had been in the country so long.”His criminal defense attorney was wrong. Padilla was sentenced to five years in prison and five years probation.

His conviction is considered an “aggravated felony” under the Immigration and Nationalization Act (INA), and deportation is mandatory by the Illegal Immigration Reform and Immigration Responsibility Act (IRIRA). Padilla’s plea left him virtually no defense to deportation once his prison term ended. Due to the wrong advice of his attorney, he sought to set aside the plea based on ineffective assistance of counsel (Sixth Amendment).

In determining ineffective counsel, the two-pronged test outlined in Strickland v. Washington: (1) did counsel’s performance fall below an objective standard of reasonableness and if so, (2) was the defendant prejudiced by his/her counsel’s deficient performance was applied. The Court viewed that if deportation consequences are this clear, “the duty to give correct advice is equally clear.” With regard to whether Padilla was prejudiced by his attorney’s actions, the Court remanded to the Kentucky court for further review.

Chief Justice Roberts and Justice Alito agreed that Padilla’s attorney had failed to provide him effective assistance of counsel as defined by Strickland, but disagreed with the majority’s decision that a defense attorney must advise his noncitizen client as to exactly what the consequences of a guilty plea might be. Due to the complexity of immigration law, Justice Alito wrote, that attorneys must only advise their clients on immigration law that is “succinct and straightforward.” Anything broader could “lead to much confusion and needless litigation.”

Because criminal defense attorneys often lack expertise in immigration law, he wrote, “They should be expected to be honest about their knowledge (or lack thereof) and to refer their clients to more knowledgeable immigration specialists.”

I agree with Judge Alito’s analysis that it is critical that all individuals who become involved in any criminal case, violent or otherwise, must make a critical decision to hire a defense attorney equipped to represent their needs in criminal court and possibly in the immigration arena. It has always been my firm’s practice to be aware of an individual’s immigration status and to negotiate appropriately to insure removal proceedings will not be imminent or brought forth in the future. If so, the client must be advised. The Padilla case now requires this.