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November 01, 2010

Padilla v. Kentucky: Criminal Defense Attorneys Must Warn Non-Citizen Clients of the Risk of Removal

This article was first published in the November, 2010 newsletter of the Western Michigan Chapter of the Federal Bar Association. It is posted here with permission.

Many people – lay and attorney alike – can be surprised at the vast array of types of convictions that can endanger legal residency status. Prior to a recent Supreme Court decision, there was often no recourse for a non-citizen who found herself facing deportation because she plead guilty to an offense without obtaining good legal advice on the immigration consequences. This was even true where she had obtained affirmatively wrong advice. At times, the government has instituted removal proceedings based on a conviction years later, or after a lawful resident lived in the United States for decades or nearly since birth. In those situations, many non-citizen residents may have family and livelihoods that they can be forced to leave behind, to return to a country that now seems completely foreign. Some non-citizens in this position came here as babies with their parents and do not even speak the language of their official "home" country.

On March 31, 2010 the U.S. Supreme Court reevaluated the right to effective assistance of counsel with respect to non-citizen defendants in Padilla v. Kentucky.2 In Padilla, the Court considered whether defense counsel must warn his or her non-citizen client that the client's conviction may result in deportation. Employing Strickland v. Washington's test for evaluating whether legal counsel was "ineffective," the Court held that criminal defense attorneys have an affirmative duty to warn their non-citizen clients of whether their guilty pleas carry a risk of removal from the United States.3 If counsel fails to issue a warning, he or she violates the defendant's Sixth Amendment right to effective assistance of counsel. Now-retired Justice John Paul Stevens, who wrote for the 5-2-2 majority, reasoned that "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in the country demand no less."4

I. Background: the Padilla Decision

The case began when truck-driver Jose Padilla considered whether to plead guilty to transporting marijuana within Kentucky borders.5 Mr. Padilla was a Honduran citizen but had legally resided in the United Stated for over 40 years as a permanent resident.6 Before entering his guilty plea, Padilla's counsel failed to warn his client that the drug trafficking conviction would subject him to possible deportation.7 Moreover, Padilla's counsel went a step further, affirmatively assuring Padilla that he need not worry about his immigration status given that he had resided in the United States for so many years.8 This was tragically incorrect legal advice. Like virtually all drug trafficking offenses, Padilla's crime was classified as a deportable offense under 8 U.S.C. § 127(a)(2)(B)(i).9

After entering his plea, Padilla faced removal proceedings to a native country he hadn't lived in for four decades.10 Based on this turn of events, Padilla filed a habeas corpus petition seeking to undo his plea. He sought post-conviction relief claiming that had he known that pleading guilty made him subject to deportation, he would have insisted on going to trial.11 Padilla asserted that his counsel's improper advice violated his Sixth Amendment right to effective assistance of counsel.12

The Supreme Court of Kentucky denied his petition and held that Padilla had effective assistance of trial counsel.13 Like many courts before Padilla, the Supreme Court of Kentucky classified deportation as a "collateral consequence" outside the realm of representation required by the Sixth Amendment.14 In the Kentucky Supreme Court's view, although Padilla's counsel had given him admittedly wrong advice regarding the immigration consequences of his conviction, these actions did not rise to the level of ineffective assistance of counsel.15

The U.S. Supreme Court, however, disagreed with the Supreme Court of Kentucky's categorization of deportation as indirect or collateral.16 After recounting the statutory evolution of immigration law, Justice Stevens described modern deportation jurisprudence as uniquely tied to the criminal process, given its particularly harsh and often mandatory nature. According to Justice Stevens, changes to our immigration law have "dramatically raised the stakes" of an alien's criminal conviction.17 Justice Stevens believes that "deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."18 Accordingly, it is often difficult to "divorce the penalty from the conviction in the deportation context."19 Advice concerning deportation is unique and, thus, cannot be removed from the realm of the Sixth Amendment.20

In Strickland v. Washington, the Court devised a two-part test to determine whether a defendant was denied his or her right to counsel.21 Part-one of Strickland instructs the court to consider "whether counsel's representation 'fell below an objective standard of reasonableness.'"22 Part-two asks "whether ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"23

Only prong one of Strickland's two-part test was at issue in Padilla. Justice Sevens turned to "prevailing professional norms" to determine whether Padilla's counsel was constitutionally deficient.24 Ultimately, the Court held that professional standards require that "counsel must advice her client regarding the risk of deportation."25 According to the Court, "‘authorities of every stripe - including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and the state and city bar publications - universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients.'"26

Although counsel must advise their clients of the risk of deportation, the Court held that the scope of an attorney's duty differs depending on whether the immigration statute is "succinct and straightforward."27 If the statute is clear, "the duty to give correct advice is equally clear."28 If the statute is unclear, counsel "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences."29

In the case at hand, the Court found the relevant statute's removal consequence "succinct, clear, and explicit."30 Had Padilla's counsel simply read the statute's text he would have "easily determined" that Padilla's plea subjected his client to removal proceedings.31 Nonetheless, Padilla's counsel provided his client with the false assurance that his conviction would not result in removal proceedings.32 Based on this, the majority held that Padilla adequately demonstrated that his constitutional Sixth Amendment rights had been violated under part-one of Strickland.33 Whether Padilla ultimately succeeds on his claim depends on whether he can meet part-two of Strickland, a matter left to Kentucky courts to resolve.34

The Court next turned to the issue of whether defense counsel has the affirmative duty to provide advice regarding deportation to alien defendants or whether Strickland applies only to the extent of affirmatively incorrect advice. The government urged the Court to hold that defense counsel is not constitutionally obligated to advise defendants on matters that will not be decided in the criminal case.35 The Court, however, disagreed.

According to Justice Stevens, "there is no relevant difference 'between an act of commission and an act of omission' in this context."36 The Court believed that if it limited its holding to affirmatively wrong advice it "would invite two absurd results."37 First, defense counsel would have an incentive to not give advice on critical matters.38 This silence would be "fundamentally at odds" with counsel's obligation to "advise the client of the advantages and disadvantages of a plea agreement."39 Second, limiting the holding to affirmatively wrong advice would "deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available."40 Thus, according to the Court, counsel must "provide her client with available advice about an issue like deportation."41 "[F]ailure to do so ‘clearly satisfies the first prong of the Strickland analysis.'"42

II. Whether Padilla applies retroactively

One big question is the impact of the decision on non-citizens who have already plead guilty and have a criminal conviction, relying on bad or no advice regarding immigration consequences. The U.S. Supreme Court limited a court's ability to hear constitutional attacks to convictions presented on collateral review in Teague v. Lane.43 In Teague, the Court held that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced."44 Thus, based on this principle, a criminal defendant may not depend on a new constitutional rule of criminal procedure to challenge his or her conviction on collateral review. Of course, this spawned a raft of case law on what is a "new constitutional rule of criminal procedure." In the short time since Padilla was decided, lower courts are already split on which side of the line it falls.

Some courts have declined to extend Padilla retroactively.45 These courts concluded that Padilla announced a new rule of criminal procedure, namely that counsel must inform his or her client of immigration consequences to a conviction.

In Michigan federal courts, the result so far has been the same. The Eastern District of Michigan first weighed in on the retroactivity issue in Haddad v. United States.46 Like Jose Padilla, Michael Haddad, was a resident alien who pled guilty to a controlled substance offense.47 Seven years after his 1997 conviction, Haddad faced removal proceedings.48 In 2010, Haddad filed for a writ of coram nobis.49 The district court, however, denied Haddad's petition.50 According to the court, it was "unlikely that Padilla will be made retroactive to convictions under collateral attack."51 The court further explained that even if Padilla applied, Haddad "would still have to demonstrate prejudice, which is equally unlikely."52

Conversely, many other courts have held that Padilla did not introduce a new rule of criminal procedure, and thus, could be the basis for re-examining prior convictions.53 These courts generally hold that Padilla merely applied Strickland's well-established test to new facts. They also point to the fact that Padilla himself brought his challenge on collateral review to support their argument. If the Court did not want Padilla to apply retroactively, surely at least one Justice would have mentioned a retroactivity issue.54

The issue has not reached any of the federal circuit courts, at least in the post-conviction relief context. However, the Sixth Circuit has already remanded a case to the Board of Immigration Appeals to consider what effect Padilla may have on the deportation proceedings.55

III. Michigan's Federal Practice Response

Padilla does not appear to have significantly altered federal practice in Michigan, where the federal courts and practitioners have already recognized this issue for some time.

Local federal district courts, for example, indicate that Padilla's mandate is not a novel concept in plea-taking practices. Some judges already warned non-citizen defendants pleading guilty of the risk of deportation, even before Padilla, and some federal criminal defense practitioners similarly report that they have been advising clients about this to date. Although neither the Eastern nor Western Districts of Michigan have amended their court rules to reflect the Padilla decision or otherwise changed plea-taking practice, it is clear that going forward the better procedure would include questions about citizenship in both an initial client interview with defense counsel and when the Court takes a plea.

Another aspect of representing non-citizen clients has not really changed: criminal defense practitioners are well-advised to seek the assistance of a competent immigration lawyer. The federal immigration laws are notoriously complex to untangle, and the entire scheme of interacting statutes cannot be understood from reviewing only a couple of statutes. Congress also amends, rewrites, and adds to the law often, and in significant and usually more restrictive ways. And while Padilla is a tiny ray of hope for a non-citizen who received bad immigration law advice, the potential for tragedy for a defense client is still pretty much as high, when they can be detained (jailed) indefinitely by immigration enforcement while they wait for possible post-conviction relief.

Endnotes:

1Sarah Riley Howard heads the White Collar Criminal Defense practice group at Warner Norcross & Judd LLP, which represents clients in a range of matters involving corporate legal compliance, federal litigation counseling, and criminal defense. Madelaine Lane is a senior associate with extensive defense experience, and is a member of the Western District's Criminal Justice Act panel appointment attorneys. Katherine Brooks is a junior associate in the group in Warner's Southfield office.

2__ U.S. __, 130 S. Ct. 1473 (2010).

3Id. at 1486.

4Id.

5Id. at 1477.

6Id.

7Id. at 1478.

8Id.

9Id. at 1477.

10Id.

11Id. at 1477-78.

12Id. at 1478.

13Id.

14Id. at 1481.

15Id.

16Id. at 1482.

17Id. at 1481.

18Id. at 1480.

19Id. at 1481.

20Id. at 1482.

21466 U.S. 668 (1984).

22Padilla, 130 S. Ct. at 1482 (quoting Strickland, 466 U.S. at 688).

23Id. (quoting Strickland, 466 U.S. at 694).

24Id. 1482.

25Id. at 1483.

26Id. at 1482 (citation omitted).

27Id. at 1483.

28Id.

29Id.

30Id. at 1482.

31Id.

32Id. at 1483.

33Id.

34Id. at 1483-84.

35Id. at 1484.

36Id.

37Id.

38Id.

39Id.

40Id.

41Id. at 1484.

42Id.

43489 U.S. 288 (1989).

44Id. at 310.

45See e.g. Gacko v. United States, No. 09-CV-4938, 2010 WL 2076020, *3 (E.D.N.Y. May 20, 2010) (declining to recognize Padilla as retroactive to cases on collateral review); see also United States v. Hernandez-Monreal, Nos. 1:07-cr-337, 1:10-cv-618, 2010 WL 2400006 (E.D. Va. June 14, 2010) (dismissing petitioner's claim as time-barred).

46Nos. 97-80150, 07-12540, 2010 WL 2884645 (E.D. Mich. July 20, 2010).

47Id. at *1.

48Id.

49Id.

50Id. at *6.

51Id.

52But see United States v. Shafeek. Nos. 05-81129, 10-12670, 2010 WL 3789747 (E.D. Mich. Sept. 22, 2010) (refusing relief but implying that Padilla may not have announced a new rule).

53See e.g. United States v. Chaidez, No. 03 CR 636-6, 2010 WL 3184150 (N.D. Ill. Aug. 11, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625 (E.D. Cal. July 1, 2010); Martin v. United States, No. 09-1387, 2010 WL 3463949 (C.D. Ill. Aug. 25, 2010); see also United States v. Millan, Nos. 3:06-cr-458/RV, 3:10-cv-165/RV/MD, 2010 WL 2557699 (N.D. Fla. May 24, 2010) (implying Padilla applied retroactively but denying relief on other grounds); United States v. Obonaga, No. 10-CV-2951, 2010 WL 2710413 (E.D.N.Y. June 30, 2010) (assuming arguendo that Padilla applied retroactively but declining to decide on the issue).

54See Chaidez, 2010 WL 3184150 at *4.

55Barakat v. Holoder, 2010 WL 3543134 (6th Cir. Aug. 18, 2010).

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