Frank Mascagni III
Frank Mascagni III, Criminal Defense Attorney - Louisville, KY
Posted over 1 year ago.

Padilla argued that the bad advice he had been given was ineffective assistance and therefore his conviction breached the Sixth Amendment. Padilla won his case in the Kentucky Appellate Court, but the Commonwealth requested the Kentucky Supreme Court hear the case on discretionary review. That court applied a harsh version of the collateral consequences rule, reasoning that whether Padilla’s attorney failed to advise him or affirmatively misadvised him before his plea made no difference.[4] The court held that even affirmative misadvice about deportation provided no grounds for relief under Strickland.[5][6]

As the Supreme Court agreed to hear it,[7] the case posed two questions: (1) whether the mandatory deportation that results from a guilty plea to trafficking in marijuana is a "collateral consequence" and counsel is thereby relieved of an affirmative duty to advise his client about it in accordance with the guarantees of the Sixth Amendment; and, (2) assuming deportation is a "collateral consequence", whether counsel's gross misadvice about deportation constitutes a ground for setting aside a guilty plea that is induced by that advice. Ultimately, the Court re-framed the case in a way that made the collateral consequences doctrine irrelevant.
Decision

The Supreme Court reversed the Kentucky Supreme Court's decision. The Supreme Court held that criminal defense attorneys are duty-bound to inform clients of the risk of deportation under three circumstances. First, where the law is unambiguous, attorneys must advise their criminal clients that deportation "will" result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation "may" result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration consequences.[8]
Stevens' majority opinion

Writing for the Court, Justice John Paul Stevens began his analysis by tracing the history of federal immigration law and its close historical connection between a criminal conviction and deportation. Ninety years ago, deportation occurred only for a narrow class of crimes and even then was discretionary.[3] Over time, that discretion has been limited, and the class of deportable offenses has expanded.[3] Now, a conviction for drug trafficking means removal is “practically inevitable”.[9]

As a threshold matter, the Court declined to apply the direct/collateral consequences distinction that had developed in the lower courts, a distinction the Supreme Court itself had never recognized.[10] The Court instead emphasized that deportation is a unique and "particularly severe penalty."[11] In addition, although deportation is civil rather than criminal, it has been closely connected to the criminal process for nearly a century.[10] Given this connection, it was difficult for the Court to classify deportation as either a direct or collateral consequence.[12] Regardless of whether the collateral consequences rule is an appropriate way of analyzing ineffectiveness cases, a question the Court did not decide, the Court found it “ill-suited” to evaluating Padilla’s deportation-related claim.[13] The court thus concluded that advice about deportation is not categorically removed from analysis under the Court's decision in Strickland v. Washington, and so applied Strickland's two-pronged test to Padilla's claim.[12]

The bulk of the Court's analysis focused on the attorney's performance under Strickland. In analyzing the performance prong, the Court first examined professional norms and practices. It determined that the weight of current professional norms indicates that attorneys must advise their clients of the risk of deportation.[12] Specifically, professional standards promulgated by the American Bar Association, the National Legal Aid and Defender Association, the Justice Department, and legal scholars all indicate that an attorney must advise his or her client of the risk.[14] Moreover, avoiding deportation may be more important to t

No photo
Asker
Posted over 1 year ago.

I've read the case and understand the court's holding. The issue in my scenario is whether the defense attorney provided effective counsel when the defendant failed to disclose his alien status, thereby allowing the defense attorney to proceed on the assumption her client was a citizen not subject to deportation.

Padilla does not specifically address the narrow issue of attorney advice based on a lack of all the facts, intentionally withheld by her client.

Since the attorney did not inquire as to the citizenship of her client, her client intentionally withheld the information, the attorney proceeded to advise him as if he were a citizen not subject to deportation.

Frank Mascagni III
Frank Mascagni III, Criminal Defense Attorney - Louisville, KY
Posted over 1 year ago.

I do not think the trial judge, who will be called upon to rule on a state claim per RCr 11.42, (if filed at the trial level) would grant a defendant's claim based on the defendant's failure to disclose all the facts in the attorney-client relationship. The full impact of the Padilla decision has not been fleshed out in KY jurisprudence since the 2010 opinion.

No photo
Asker
Posted over 1 year ago.

Thank you. That's what I was getting at. This may be the case IF the defense attorney does not have a duty to ascertain the citizenship status of her client.

Frank Mascagni III
Frank Mascagni III, Criminal Defense Attorney - Louisville, KY
Posted over 1 year ago.

Pre-Padilla, I would submit defense counsel had little, if any, obligation in the ordinary course of defense of a criminal charge to make inquiry; but now, I would submit defense counsel should make inquiry in the representation as to the impact of a criminal conviction on the client's status with ICE.

No photo
Asker
Posted over 1 year ago.

It is not yet determined whether defense counsel has a duty to inquire, absent some legitimate reason to inquire. Not all immigrants are brown and speak with an accent. :-)