Immigration Update: Representing Non-citizens in Criminal Court

The criminal defense practice changed dramatically this past year.  The U.S. Supreme Court issued its opinion Padilla v. Kentucky, and found immigration consequences for non-citizens in criminal cases...

How Padilla v. Kentucky Fundamentally Changed Criminal Defense for Non-citizens

The criminal defense practice changed dramatically this past year.  The U.S. Supreme Court issued its opinion Padilla v. Kentucky, and found immigration consequences for non-citizens in criminal cases are not collateral and therefore criminal defense counsel’s conduct could be found to fall below professional standards for failing to give correct and affirmative immigration consequence advice.  See Padilla v. Kentucky, 559 U.S. ___ (2010). Padilla extended Strickland v. Washington, the seminal ineffective assistance of counsel case.  The two prongs of Strickland of whether an attorney is ineffective are:

1. Whether the attorney conduct falls below professional standards, and,
2. Whether there is a reasonable probability that the error was prejudicial or NOT harmless.

Padilla involved the first prong of whether attorney conduct falls below professional standards.  The Defendant Padilla, a long-time permanent resident and Vietnam veteran, was given incorrect immigration advice before he pled to a marijuana trafficking crime.  His criminal defense attorney told him he would not have any problems with immigration because he had been in the U.S. for so long.  Mr. Padilla was surprised to find himself in removal proceedings and filed for post-conviction relief.  The State of Kentucky said his criminal defense counsel had no general duty to advise about the immigration consequences so that even incorrect advice was not ineffective assistance of counsel.  The Supreme Court disagreed and provided guidance to attorneys to meet professional standards in two situations (1) when the immigration consequences are not succinct and straightforward, and, (2) when the immigration consequences are truly clear.

The Attorney’s Duty: 2 Situations

1)  When the law is not succinct and straightforward, a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry risk of adverse immigration consequences.  In this situation, I believe defense counsel need only comply with the Iowa the Rules of Criminal Procedure. 

2)  When the consequences are truly clear, the duty to give correct advice is equally clear.  In this situation, the Iowa rules of Criminal Procedure advisal does not meet the Supreme Court’s standard for effective representation.  Criminal defense attorneys need to know when remedies are preserved and destroyed and plea bargain accordingly.  The Supreme Court acknowledged preserving the possibility of discretionary relief would have been one of the principle benefits a defendant would need in order to intelligently determine whether to accept a plea offer or proceed to trial. 

Padilla does not explain when the immigration consequences are truly clear so there will be arguments on this.  In post-conviction proceedings, counsel should be prepared to present expert immigration testimony as to whether the consequences were truly clear.

Retroactivity of Padilla v. Kentucky: How far back were criminal defense attorneys obligated to provide immigration advice?

This open to debate, however, the Padilla court cited sources for professional norms from as far back as 1993 on page 9 and 10 of the slip opinion, and some counsel argue as far back to 1984.  Justice Stevens also wrote in the majority opinion that for the past 15 years attorneys have known the importance of immigration consequences.  Really good post-conviction relief Padilla cases would certainly be after passage of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, (also known as AEDPA) on April 24, 1996. 

In Iowa, is reasonable to believe non-citizen criminal defendants making Padilla post-conviction relief claims are not limited to the statutory deadline of three years from the date of conviction in old cases.  Iowa criminal defense counsel following the Iowa Supreme Court guidelines and directives could still not meet the requirements set out by the U.S. Supreme Court. 

The Second Prong - Prejudice

Once the first prong is met, prejudice must be shown and often is the most difficult hurdle in post-conviction relief.  The second prong asks would the immigration consequence advice made a difference in the non-citizen’s decision.   It is not required to show the outcome would actually have been different, but a reasonable probability that it would have been different which is a lower standard. 

Whether the defendant would have taken the plea that day in court is ripe for argument.  For example, the defendant might have litigated suppression issues or accepted another type of plea.  Also, the Supreme Court provides an argument for prejudice when it wrote that counsel who possess the most rudimentary understanding of the deportation consequences of a particular offense might be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduces the likelihood of deportation.  See Slip Opinion, Page 16. 

Iowa Case

State of Iowa v. Romos, Decided June 30, 2010

The Court of Appeals of Iowa has already acknowledged the Padilla case this past summer.  In that case, the Court found defense counsel advised Romos of the risk he could be deported if he pled guilty, and this fulfilled his duty under Padilla.

** The Romos Court never actually addressed whether the deportation consequences were clear or unclear and instead seemed to skip over this crucial requirement outlined in Padilla.  Evidence by an immigration law expert about whether the immigration consequences were clear and whether these consequences were properly conveyed could be critical to these cases. 

Creating Systems to Provide Effective Representation

All criminal defense counsel need automatic systems to address representation of non-citizens. To provide effective representation all criminal defense counsel should do the following:

1. Identify whether the client needs immigration advice,
2. Investigate the possible effects of the different legal strategies,
3. Provide informed disclosure of the immigration consequences,
4. Determine the client’s priorities and goals, and,
5. Defend the case according to the client’s priorities.