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Bar News - May 14, 2010

Immigration Law: Immigrants Have a Constitutional Right to Know the Immigration Impact of a Conviction


Enrique F. Mesa Jr.

George Bruno
On March 31, 2010, the US Supreme Court ruled in Padilla v. Kentucky, 555 U. S. ___ (2010) that immigrants/non-citizens have a Sixth Amendment right to be advised by their lawyers whether pleading guilty to a crime could lead to deportation. The Court agreed with Padilla’s argument that his counsel should have advised him that his conviction made him subject to automatic deportation. Id. at 2.

In Padilla, the Supreme Court of Kentucky denied Padilla’s post-conviction relief on the ground that the Sixth Amendment’s effective assistance of counsel guarantee does not protect a criminal defendant from erroneous advice about deportation because it is merely a "collateral" consequence of his conviction. Id. at 7. The view from Kentucky’s high court is also shared by [our] own First Circuit. (U.S. v. Gonzalez, 202 F. 3d 20 (CA1 2000). The Supreme Court ruled that deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or collateral consequence. Id. at 8. It said that when evaluating an ineffective assistance claim concerning the specific risk of deportation, advice regarding deportation is not removed from the ambit of the Sixth Amendment right to counsel. Id. at 9.

Before deciding whether to plead guilty, a defendant is entitled to "the effective assistance of competent counsel." McMann v. Richardson, 397 U. S. 759, 771. The Supreme Court has adopted the following two-prong test from Strickland v. Washington, 466 U. S. 668, which states: (1) counsel’s representation must fall "below an objective standard of reasonableness," 466 U. S., at 688, and (2) there must be "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different," Id., at 694.

The first prong, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id., at 688. Prevailing professional norms supports the view that counsel must advise his/her client of the deportation risk. The Court has recognized the importance to the client of " [p]reserving the . . . right to remain in the United States" and "preserving the possibility of" discretionary relief from deportation. INS v. St. Cyr, 533 U. S. 289, 323.

Padilla is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute; his deportation was presumptively mandatory, and his counsel’s assurances of no negative consequences to his plea were incorrect. There will, however, 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 here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland’s first prong. Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance (pp. 9 – 12).

With the recent increase of ICE enforcement and deportation, this is a useful time to remind attorneys that all it takes is a term of imprisonment imposed with a 12-month sentence for a crime of violence, i.e. domestic violence, battery or simple assault to turn an immigrant client’s conviction into an aggravated felony under immigration law. See INA § 101(a)(43)(F).

For example, noncitizens, including legal permanent residents, convicted of an aggravated felony, at any time after admission into the US are deportable. INA § 237(a)(2)(A)(iii), 8 USC § 1227(a)(2)(A)(iii). Even if the state classifies the underlying offense as a misdemeanor, it could still be considered an aggravated felony for immigration purposes. The definition of an aggravated felony includes a crime of violence for which the term of imprisonment is at least one year. See INA § 101(a)(43)(F).

In such cases, the non-citizen will be placed in immigration proceedings even if he is a legal permanent resident (Green Card holder). The key to whether he will be eligible for some kind of relief is all about the sentence. Should the sentence imposed be for 12 months or more, the conviction will be considered an aggravated felony, even if the immigrant has been a legal permanent resident for 20 years. The defendant is subject to deportation with no opportunity to request a waiver.

Current practice is for ICE to place non-citizens in removal proceedings for convictions that may be 10 to 15 years old and long-forgotten. These days, it appears that ICE/DHS never forgets.

Padilla is a reminder to criminal attorneys, prosecutors and judges to be extra vigilant, especially when dealing with legal permanent residents, to understand the serious consequences of a sentence or plea arrangement that carries a 12-month sentence for a crime of violence. The US Constitution now has something to say about that.

George Bruno and Enrique Mesa, Jr., members of the firm LawServe, practice immigration law in Manchester, NH.

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