A New Constitutional Mandate for Defense Counsel

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by School of Government Immigration Law Specialist Sejal Zota

Is defense counsel constitutionally obligated to inform a noncitizen criminal defendant whether his guilty plea carries a risk of deportation? Yesterday, the United States Supreme Court said yes in a case called Padilla v. Kentucky.

In Padilla, the petitioner—a lawful permanent resident (green card holder) for over 40 years and Vietnam veteran—faced drug-distribution charges in a Kentucky trial court.  His attorney advised him to plead guilty in exchange for a lighter sentence and not “to worry about [deportation] since he had been in the country so long.” Padilla took this advice.  When he learned that his lawyer’s immigration advice was wrong and he would face deportation for his conviction, he sought to overturn it by arguing that he would have gone to trial but for counsel’s incorrect advice. The Supreme Court of Kentucky rejected his claim, holding that advice about deportation is a “collateral consequence” of conviction, and outside the scope of representation required by the Sixth Amendment.

Holding that deportation is an integral part of the penalty that may be imposed on noncitizen criminal defendants, the United States Supreme Court reversed. The Court found that the protections of Strickland v. Washington, 466 U.S. 688 (1984)—which entitle criminal defendants to effective assistance of counsel before deciding to plead guilty—apply to advice regarding deportation. The Court also found the Kentucky court’s distinction between direct and collateral consequences was beside the point.

In evaluating Padilla’s ineffectiveness claim, the Court found that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms—“This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could be easily determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.” Clear and unambiguous immigration law made the crime of drug distribution to which Padilla pled guilty a basis for deportation of noncitizens because it relates to a nontrivial possession of a controlled substance.

The Court’s ruling yesterday did not wholly resolve Padilla’s claim. The Court declined to address whether he had been prejudiced by his attorney’s actions and remanded for further proceedings. In assuaging a “floodgates” concern, the Court held that to establish prejudice, a reviewing court must be convinced that a petitioner’s decision to reject a plea bargain would have been rational under the circumstances.

What’s interesting about this case is the Court could have limited the holding to “affirmative misadvice”— finding representation may be constitutionally deficient only when defense counsel actually provides advice about deportation and that advice is patently wrong. Before yesterday, many state and federal courts had long held such a view.  But instead, the Court’s ruling recognized the seriousness of deportation as a consequence of a criminal plea, and now obligates defense counsel to inform noncitizen clients about the risk of deportation. The Court has given defense counsel across the Nation an important responsibility that many had already undertaken in cooperation with immigration attorneys.  But it will not always be an easy task.

“When the deportation consequences are truly clear, the duty to give correct advice is equally clear.” As someone who regularly consults in this area, I can tell you that determining deportation consequences can be complex stuff. Deportation may depend on various factors such as a client’s immigration status; the length of sentence; whether the state offense falls under broad grounds of deportation like crimes involving moral turpitude, whether a state disposition will be treated as a conviction for immigration purposes … you get the picture. It may often be the case that the deportation consequences of a particular plea are unclear to defense counsel. In those instances, the Court places a lesser burden on defense counsel: when the deportation consequences of a particular plea are unclear or uncertain, “defense counsel need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

Fortunately, many defender offices around the country, including in North Carolina, are ahead of the curve. Many already train staff on immigration consequences with the help of networks of experts.  Foreshadowing the Padilla decision, the School of Government has already published a manual on the Immigration Consequences of a Criminal Conviction in North Carolina. It appears that the manual may become required reading for the criminal defense bar. I am also available to help public defenders and assigned counsel determine the immigration consequences of convictions.

6 comments on “A New Constitutional Mandate for Defense Counsel

  1. Dear Sirs,

    Based upon the USSC decision in the case of Padilla v Kentucky. Please Can you advised what would be my best plan of attack. Please note, I have a case being currently ligated before NSC, concerning this matter for the 5th time. I am nevertheless am seeking further advice.

    AFFIDAVIT OF FORMER CLARK COUNTY DEPUTY
    DISTRICT ATTORNEY LESTER QUAM
    STATE OF NEVADA )
    :ss
    COUNTY OF CLARK)

    LESTER QUAM, being duly sworn, deposes and says:

    1. That affiant is knowledgeable about all matters set forth in this affidavit and knows them to be true.

    2. That I am competent to testify concerning the facts contained in this affidavit.

    3. That I was employed as a deputy District Attorney for the county of Clark, State of Nevada in 1994.

    4. That I was assigned to the criminal division in 1994.

    5. That one of the criminal cases I was assigned to in 1994 was the State of Nevada V. Mark Hough case numbers Cl 15662 and Cl 16863.

    6. That Mr. Hough’s social security number is 585-1340-23 and his date of birth is December 21, 1961.

    7. That in case numbers Cl 15662 and Cl 16863. Mr. Hough was charged with Burglary and possession of stolen property.

    8. That after two preliminary hearings both cases were bound over for trial to the Clark county District Court.

    9. That prior to trial Mr. Hough was administered and passed a polygraph
    examination as to whether or not he actually broke into people’s homes and committed the act of Burglary.

    10. That on April 29, 1994 Mr. Hough entered into a plea agreement whereby he agreed to plead guilty to two (2) counts of possession of stolen property. Both charges being felonies.

    11. That on April 29, 1994 before Judge J. Charles Thompson, Mr. Hough pleadedguilty to case number Cl 15662 one count of possession of stolen property.

    12. That prior to entering his plea, during negotiations, Mr. Hough advised me, in the presence of his attorney, for the first time that he was a resident alien and by pleading guilty to any felony, he would have problems with the United States Immigration Service.

    13. That I, Lester Quam advised Mr. Hough in the presence of his attorney that “The State” would not “pursue” any immigration matters or holds in regard to Mr. Hough. Mr. Hough was in essence promised by the “State” that if he pled guilty he would not have any immigration problems from the “State”.

    14. That during the plea agreement, as it was read into the record I, Lester Quam again stated on the record page 6, line 3 and 4 of the plea transcript, that the “State would not be pursuing any immigration hold or any other matter of that nature” against Mr. Hough.

    15. That the plea agreement agreed to by Mr. Hough clearly stated that the “State” would not pursue or cause any immigration problems for Mr. Hough.

    16. That subsequent to his release from the Clark County jail, the United States immigration service was waiting for him and placed him into custody.

    17. That Mr. Hough was in fact deported from the United States as a result of the two felony convictions he had agreed to.

    18. That after many years of trying, Mr. Hough was finally able to locate me on or about June 21,2004.

    19. That unknown to myself and Mr. Hough, at the time of the plea agreement in 1994, the Clark County Jail was required to notify the United States Immigration Service whenever a resident alien is processed through the county jail.

    20. That had Mr. Hough known that his pleading guilty would have resulted in any United States Immigration problems he never would have entered into the plea agreement. This was clearly stated to this affiant by Mr. Hough in the presence of his attorney. Clearly, Mr. Hough pled guilty with the understanding that the immigration service would not be involved. That is the only reason Mr. Hough agreed to plead guilty, because he believed that immigration would not be involved.

    21. That had I known that the county jail had as it’s policy in 1994 to automatically notify the United States Immigration Service anytime a resident alien is processed through the jail I never would have offered the plea agreement to Mr. Hough with the promise that the “State” would not pursue an immigration hold or any other matters with the immigration service.

    22. That it has come to my attention that Mr. Hough, a resident alien did not understand that the “state” as represented by Clark County Deputy District Attorney Mr. Quam was a different entity than the federal branch of the United States Immigration Service. Mr. Hough justifiably believed that Mr. Quam and the Clark County District judge had some power or authority over the United States Immigration service. And that when Mr. Quam stated for the record and made the promise a part of the plea agreement that the “State” would not pursue any immigration matters. Mr. Hough justifiably believed that Mr. Quam or the county judge could somehow prevent the immigration from using the two felony convictions from deporting him.

    23. That furthermore had I known that the county jail was going to immediately contact the United States immigration Service, he would never had let Mr. Hough proceed with the plea agreement as it was offered to Mr. Hough. The plea agreement clearly incorporated the promise that the “State ” would not pursue immigration issues. Had Mr. Quam known that another county agency would by it’s own policy violate the terms of the plea agreement, he never could have gone through with the agreement.

    24. That my understanding of the plea agreement and promise regarding immigration was that the “state” meaning the District Attorney’s office would not pursue or cause Mr. Hough to have any immigration problems as a result of the plea bargain.

    25. That due to a misunderstanding of the meaning of the “State”, Mr. Hough pled guilty to the two felonies. Absent the misunderstanding neither Mr. Hough nor Mr. Quam would have entered into the April 29 1994 plea agreement.

    26. That as a result of the misunderstanding, the plea agreement should be set aside since no actual agreement existed due to the misunderstanding. No meeting of the minds actually occurred due to the mutual misunderstanding of fact on both the defendant and the county.

    27. That Mr. Hough made numerous attempts over the years to have his attorney at the plea agreement on April 29, 1994, John Moran Jr. to enforce the agreement or contact the state to bring the misunderstanding to the attention of the State.

    28. That Mr. Hough made several unsuccessful attempts over the years to contact me, but due to my unforeseen retirement in 1997 from the Clark County District Attorneys Office was never able to locate me until June 2004.

    29. That in this affiant’s opinion, a grave injustice has been done to Mr. Hough and the 1994 convictions should be vacated and the plea agreement be deemed null and void. That the plea agreement was never intended to cause the deportation of Mr . Hough.

    Further Affiant sayeth Naught
    f
    Lester Quam

    Signed and sworn before me this day of June 2004.
    Notary public in and for said County and State
    PL LITTLE
    Notary Public, State of Nevada
    Appointment No. 9823931
    MyAnpl Expires May 12,2002

    • I would think that being a resident, he has had many many articles of reading materials given to him where it explains (and it is on letterhead!) that US Immigration is a department of the Federal government. Also, in the process if attempting to become a citizen, there is a study guide for the citizen test. It outlines our system of government very clearly and specifically, noting the difference between Federal, State, and Municipality; their responsibilities; their limitations. Immigrants NEED to know this because it is on the citizenship test. I don’t think that it is reasonable that he “just didn’t know,” that he made such a mistake of the meaning of the word “state,” or that he thought a county government official had sway with Immigration.
      It is very good and ethical that you are attempting to clarify the agreement in their favor. On the other hand, local, county, and state LEOs cannot make promises regarding Federal laws & policies. Mr Quam was making promises he cannot keep – an area in which all LEOs must be careful not to tread.

  2. In the transcript of plea on the AOC form, a defendant is asked during a guilty plea if he is aware that if he is here illegally, does he understand that the conviction could result in his deportation. Any thoughts?

    • Does this question pertain to you? If so,then what would you like to know. I have many thoughts, and if you plead guilty and were made aware of the immigration consequences, you are pretty much screwed. The State has covered their behinds. However, this does not mean there maybe other grounds you could raised Such as a IAC motion.

  3. […] assistance of counsel ruling in Padilla v. Kentucky — which my colleague Sejal Zota explored here — to cover faulty advice about whether a conviction carries with it the obligation to […]

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