Written by attorney JoAnn Lois Barten

Reopening A Criminal Case because of Immigration Deportation Consequences

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 failure 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 Kentucky court said Mr. Padilla's 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. When this occurs, Iowa lawyers can follow the Iowa Rules of Criminal Procedure requirements for guilty pleas and meet this requirement.

2) When the consequences are truly clear, the duty to give correct advice is equally clear. 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 decide whether to accept the offer or proceed to trial. Criminal defense attorneys need to know when remedies are preserved and destroyed and plea bargain accordingly. All criminal attorneys need to read 8 U.S.C. 1101(a)(43) for aggravated felonies. This is a departure from the Iowa Supreme Court guidelines.

Padilla does not explain when the immigration consequences are truly clear so there will be arguments on what is clear. However, it is safe to assume aggravated felonies and controlled substances violations have truly clear immigration consequences.

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. Justice Stevens also wrote in the majority opinion that for the past 15 years attorneys have known the importance of immigration consequences. Thus, really good post-conviction relief Padilla cases would 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 for example, it 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 hardest part to overcome 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.

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.

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