Written by attorney Jason C. Mills


The recent Supreme Court decision Padilla v. Kentucky greatly impacts those who practice in the criminal realm. The Court in Padilla declared that the threat of deportation is such a major component of criminal plea agreements that a defendant’s advice regarding such deportation is protected by the sixth amendment. The Court explained that although deportation proceedings are civil from a procedural basis they are intimately intertwined with the criminal process. Primarily, the court issued two mandates in regards to a plea bargain agreement when dealing with a non-citizen. 1) When the deportation consequence is truly clear then the duty to give correct advice is equally clear. 2) In cases where the deportation of a person is unclear a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse consequences. The court then reiterated the standard used in Strickland which sets forth the two familiar prongs of ineffective assistance of counsel in regards to the Sixth Amendment. The first step is to analyze whether counsel’s performance has fallen below a reasonable level of competency. Once deficient performance can be established under this standard the second prong is to determine if there was prejudice as a result of having fallen below this standard. See Strickland v. Washington, 466 U.S. at 686 (1984). Additionally, the Court in Padilla found it paramount for a defendant to be reasonably and competently informed when dealing with the plea bargaining process. Further, the Court maintained the sanctity of the bargain when dealing with the criminal process. Based on this reasoning the Court found that failure to provide a client with available advice concerning deportation clearly satisfies the first prong in Strickland. See id. at 13. The Court did not go into whether the defendant was prejudiced as it remanded the case for that determination.

WHAT EFFECTS WILL PADILLA HAVE ON THE JUDICIARY AND THE GOVERNMENT ATTORNEY Frequently, boiler plate language is utilized by the government on plea agreements to cover warnings regarding deportation. Boiler plate may not be effective any longer because Padilla mandates a new constitutional safeguard. Based on the implications that this case will have on proper advisals for the non citizen defendant Criminal Judges and District Attorney Offices should probably devise a system to communicate with defense counsel on the immigration consequences when fashioning plea agreements. The language in Padilla strongly suggests such an open line of communication between defense counsel and the government. See id. Specifically, the Court stated that informed consent can only benefit both the State and the non citizen during pleas. See Padilla at 16. Further, it goes on to state that the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. In many instances a criminal episode may provide the basis for multiple charges of which only a subset may mandate deportation following conviction. See id at 16. At the same time the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a charge that does. See id. In sum, the Supreme Court has decided that there are criminal convictions that will clearly result in a deportation and then there are cases that are not so clear. In doing so they distinguished two separate standards for handling each scenario. First, when deportation is clear because of the criminal conviction so is the duty to advise that deportation is inevitable as a consequence of the plea. Second, when deportation is not so clear the duty is lessened to the extent that defense counsel must simply advise that adverse immigration consequences could likely occur. Consequently, boiler plate language in plea papers would need to distinguish which criminal convictions were categorized as clearly resulting in deportation and those that did not. This would present a tenuous situation wherein seasoned immigration attorneys could attack relentlessly standard boiler plate warnings used to cover the duty that is owed in Padilla. This is because no boiler plate could accurately cover the vast amount of variance in our immigration laws and its relation to criminal activity.

WHAT COMES NEXT Based on this case several convictions may end up overturned but probably not in an unprecedented fashion. The Court when addressing whether this case will open the flood gates pointed out that that 95% of all criminal cases end up as plea bargaining agreements, but only account for about 30% of the habeas petitions being filed. See Padilla at 15. Further, the element of prejudice was not really discussed which is generally a difficult task to prove. One must show that but for counsel’s unprofessional errors that there is a reasonable probability the result of the proceeding would have been different. See Strickland at 686. Even with the limitations inherent in the process itself and those set forth in Strickland many Habeas Corpus filings will probably be filed anyway in regards to Padilla over the next few years. Therefore, virtually all criminal judges, prosecutors, and defense attorneys should familiarize themselves with this case and its effects. The Supreme Court has mandated that the Sixth Amendment extends to not only criminal proceedings but immigration related consequences relating to criminal plea agreements. This decision is a Constitutional mandate. Therefore, a system devised to efficiently adjudicate the habeas petitions and resolve the cases involving Padilla is advised. Cases that require a plea to be undone through a habeas will most likely come into play when the non citizen who entered a guilty plea was a permanent resident. Those instances wherein an individual has no authorization to be in the United States in the first place will have a more difficult time showing prejudice. However, that is not to be said that illegal aliens do not share in the same right as the standard set forth in Padilla as they are specifically included. A system to handle the Padilla claims is important but equally important is a system preventing Padilla based claims. Consequently, this system should utilize open communication between defense counsel and the prosecution when fashioning a plea involving immigration consequences. They should and must be taken into consideration. Further, obtaining a legal memo from an immigration professional will further guard against any claim of ineffective assistance of counsel, inform the client wholly, and should satisfy the Supreme Court’s mandate.

WHAT CRIMES WILL ASSUREDLY RESULT IN DEPORTATION Aggravated Felonies Aggravated felonies are generally the most seriously ranked crimes in the immigration context. They are listed in section 101(a)(43) of the Immigration and Nationality Act and include such crimes as murder, sexual abuse of a minor, theft offenses of certain amounts, drug trafficking crimes, etc. See INA Section 101(a)(43). Most non citizens are barred from any relief from deportation (or removal as it is now called) if they have been convicted of one of the enumerated offenses contained in this section. However, this rule of thumb may not always necessarily be the case. Some individuals may obtain waivers in certain situations that will allow them to become or remain permanent residents even if convicted of an aggravated felony. Because of these complexities which may arise even in the case of aggravated felonies Justice Alito with whom Chief Justice John Roberts joined wrote a concurring opinion. They agree that affirmative misadvice in regards to a plea agreement as it relates to immigration consequences should satisfy the first prong of ineffective assistance. However, they bemoan the constitutional standards that the majority sets forth. As they are familiar with the complexities of the immigration process, Justice Alito indicates that the duty owed to a criminal defendant should be to refer him to a seasoned immigration practitioner who can more competently give advice in regards to the various scenarios that could play out as a result of a guilty plea. See id. at 1 (concurring opinion). He further states that reasonably competent attorneys should know that it is not appropriate or responsible to hold themselves out as authorities on a difficult and complicated subject matter with which they are not familiar. See id at 11-14. With the discord will come a line of cases examining the Court’s meaning and a new body of common law. It seems most prudent to obtain memos then from experienced immigration counsel when the criminal attorney is dealing with a non-citizen. Hypothetical Situation Mr. Salazar is a 22 year old Hispanic male. He has been a legal permanent resident for 10 years. He has never been in trouble but recently picked up a marijuana charge. The District Attorney’s office has filed a misdemeanor information against him charging him with possession of a controlled substance to wit marijuana of less than 2 ounces.What will happen to his status if he is found guilty or pleads guilty to the offense? See Arces Vences v. Mukasey 512 F.3d 167 (5th Cir. 2007). Same facts as above however, Mr Salazar has a second degree felony charge of possession of marijuana and he will most likely plead guilty to the offense. See same. See 21 USC 844. Same facts as above however Mr. Salazar is being charged with a state jail felony of delivery of marijuana ? See 18 USC 924(c). Same facts as above but he is being charged with possession of cocaine of less than a gram. See 21 USC 844 again.

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