PADILLA v KENTUCKY
599 U.S. __, slip op. at * 2 (2010).
Jose Padilla was a lawful permanent resident for over 40 years, and served our country in the Vietnam War. He pled guilty to trafficking of marijuana, after being advised by his criminal defense attorney that because he had been in the USA so long, this conviction would not lead to deportation. Actually Mr. Padilla's conviction for drug distribution made him subject to automatic deportation.
On appeal the lower court said that deportation was a collateral consequence, and therefore outside the scope of the Sixth Amendment right to counsel. The Supreme Court disagreed. In light of increasing harshness of immigration laws, it said, “Accurate legal advice for noncitizens accused of crimes has never been more important.”
Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.
MAIN POINTS
for Criminal Defense Lawyers
On appeal the lower court said that deportation was a collateral consequence, and therefore outside the scope of the Sixth Amendment right to counsel. The Supreme Court disagreed. In light of increasing harshness of immigration laws, it said, “Accurate legal advice for noncitizens accused of crimes has never been more important.”
Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.
MAIN POINTS
for Criminal Defense Lawyers
- Deportation is a “particularly severe penalty” that is “intimately related” to the criminal process.
- Advice regarding deportation is not removed from the ambit of the Sixth Amendment right to effective assistance of counsel.
- The Sixth Amendment requires affirmative, competent advice regarding immigration consequences. Non-advice (silence) is insufficient (ineffective).
- To tell a client they may be deported is not enough. What is required is “Informed consideration” of immigration consequences by both the defense and the prosecution during plea negotiations, in order to reduce likelihood of deportation and promote interests of justice.
DEFENSE STRATEGIES
(with thanks to the Defending Immigrants Partnership)
INVESTIGATE THE FACTS. Immigration status, prior removal processes, family ties, children community ties, current visa or visa overstays, refugees, victims of human trafficking, details of ALL convictions past and present, length of probation, amount of restitution.
CLIENT'S PRIORITY. Good Immigration result versus mild criminal penalty. Find out if: a. Goal is to avoid triggering deportation, and preserve eligibility to obtain future immigration benefits; or b. Goal is to Get out of jail/custody quickly, with a desire to be deported as part of resolution.
WEIGH OUT THE OPTIONS. Try ways of avoiding deportability and maintaining eligibility for relief from removal. This analysis determines whether the consequences of the plea are clear or unclear
You may have to consult with a criminal immigration expert in order to advise on both the clear and unclear consequences of the charge, the offer and any alternate plea dispositions that may be attainable in the case.
DEFEND THE CASE ACCORDING TO CLIENT'S PRIORITIES. If immigration consequences are highest priority, defense counsel must tailor defense tactics with this in mind. If the current plea offer will not meet client's priority, then try these tactics:
a) Negotiate sentencing concession
b) Negotiate plea offer to particular section of statute
c) Make counter offer with sentencing concession
d) Make counter offer plead to specific section of statute
e) Litigate case towards motions hearing and trial
f) Remember Padilla’s instruction on prosecutor’s duty
(with thanks to the Defending Immigrants Partnership)
INVESTIGATE THE FACTS. Immigration status, prior removal processes, family ties, children community ties, current visa or visa overstays, refugees, victims of human trafficking, details of ALL convictions past and present, length of probation, amount of restitution.
CLIENT'S PRIORITY. Good Immigration result versus mild criminal penalty. Find out if: a. Goal is to avoid triggering deportation, and preserve eligibility to obtain future immigration benefits; or b. Goal is to Get out of jail/custody quickly, with a desire to be deported as part of resolution.
WEIGH OUT THE OPTIONS. Try ways of avoiding deportability and maintaining eligibility for relief from removal. This analysis determines whether the consequences of the plea are clear or unclear
You may have to consult with a criminal immigration expert in order to advise on both the clear and unclear consequences of the charge, the offer and any alternate plea dispositions that may be attainable in the case.
DEFEND THE CASE ACCORDING TO CLIENT'S PRIORITIES. If immigration consequences are highest priority, defense counsel must tailor defense tactics with this in mind. If the current plea offer will not meet client's priority, then try these tactics:
a) Negotiate sentencing concession
b) Negotiate plea offer to particular section of statute
c) Make counter offer with sentencing concession
d) Make counter offer plead to specific section of statute
e) Litigate case towards motions hearing and trial
f) Remember Padilla’s instruction on prosecutor’s duty
Immigration Consequences of Criminal Dispositions
• Deportation (sometimes mandatory)
• Detention during deportation case (sometimes mandatory)
• Bar to getting lawful immigration status (e.g. greencard, asylum, temporary protected status, student or work visas)
• Bar to citizenship (temporary or permanent)
• Bar to relief from deportation
• Bar to returning to U.S. after trip abroad or after deportation.
• Sometimes, even admissions to conduct, without a conviction, can have immigration consequences
• Deportation (sometimes mandatory)
• Detention during deportation case (sometimes mandatory)
• Bar to getting lawful immigration status (e.g. greencard, asylum, temporary protected status, student or work visas)
• Bar to citizenship (temporary or permanent)
• Bar to relief from deportation
• Bar to returning to U.S. after trip abroad or after deportation.
• Sometimes, even admissions to conduct, without a conviction, can have immigration consequences