The title I gave this post is actually not quite accurate. Five years ago, in its 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court established that criminal defense attorneys have an obligation, as part of the Sixth Amendment guarantee of effective assistance of counsel, to advise noncitizen clients about the immigration consequences of the criminal charges against them. In its recent decision in State v. Nkiam, ___ N.C. App. ___ (Nov. 3, 2015), temp. stay allowed, ___ N.C. ___ (Nov. 23, 2015), the North Carolina Court of Appeals found that the defendant’s counsel failed to meet this obligation. Although Nkiam seems like a straightforward application of Padilla, it has caught people’s attention because it is the first North Carolina appellate decision to address the merits of a Padilla claim of ineffective assistance of counsel. (In previous cases, the North Carolina Court of Appeals found it unnecessary to address the merits of the defendant’s claim, holding that Padilla did not apply retroactively and did not afford relief to a person whose conviction was final before Padilla was decided. State v. Alshaif, 219 N.C. App. 162 (2012); accord Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103 (2012).)
The defendant in Nkiam was born in 1990 in the Democratic Republic of Congo. He moved to the United States as an asylee when he was about eleven years old and later obtained a green card and became a lawful permanent resident. In 2012, he was charged with armed robbery, a Class D felony, and conspiracy to commit armed robbery, a Class E felony. After conferring with counsel, he accepted a plea offer to aiding and abetting common law robbery, a Class G felony, and conspiracy to commit common law robbery, a Class H felony. The judge sentenced him to two consecutive suspended sentences and probation, a seemingly good deal from a criminal law perspective.
As recognized by the court in Nkiam, however, the plea carried serious immigration consequences. Deportation was “presumptively mandatory” for the defendant’s robbery conviction because it is an “aggravated felony” under federal immigration law. (Aggravated felonies include, among other offenses, theft offenses when the person receives a sentence of imprisonment, active or suspended, of one year of more.) Consequently, following his guilty plea, the federal government arrested the defendant, took him to a holding facility in Atlanta, and started deportation proceedings. The defendant thereafter filed a motion for appropriate relief in state court alleging that his attorney was ineffective for failing to advise him of the immigration consequences of his plea. Although his attorney had advised him that there was a risk of deportation—that is, that he could be deported as a result of the plea—his attorney did not advise him that deportation was presumptively mandatory—that is, that he would be deported.
Applying Padilla, the court in Nkiam agreed that the attorney’s advice was insufficient. The court recognized that Padilla established a bifurcated duty for defense counsel—that is, “when the consequence of deportation is unclear or uncertain, counsel need only advise the client of the risk of deportation, but when the consequence of deportation is truly clear, counsel must advise the client in more certain terms.” Nkiam, sl. op. at 14, citing Padilla, 559 U.S. at 369. The court found that deportation was a “truly clear” consequence in this case because it could be discerned from the plain language of the immigration statutes. See Nkiam, sl. op. at 19 (distinguishing cases in which the immigration consequences were not truly clear, as when the federal courts had divergent views or had not addressed the issue). The court rejected the State’s argument that various forms of immigration relief were available to the defendant and therefore that the consequence of deportation was unclear. As the court recognized, such relief is rarely granted; its theoretical availability does not relieve counsel of the obligation to give “correct advice” about the likelihood of deportation. Nkiam, sl. op. at 22, quoting Padilla, 559 U.S. at 369.
Although the court found that the defendant received ineffective assistance of counsel in connection with his decision whether to enter a guilty plea, the court remanded the case for the trial court to determine whether the defendant was prejudiced. Reviewing U.S. Supreme Court decisions on the plea process and decisions from other jurisdictions applying Padilla, the Court of Appeals held that the standard to be applied by the trial court on remand is whether rejection of the plea offer “would have been a rational choice, even if not the best choice, when taking into account the importance the defendant places upon preserving his right to remain in the country.” Nkiam, sl. op. at 30. The court found that the defendant presented sufficient evidence to support such a finding but left the issue for the trial court to resolve.
What are the lessons for defense counsel from Padilla and Nkiam? When the immigration consequences are clear, as with a conviction of an aggravated felony, counsel must give “correct advice” about those consequences; merely indicating that the consequences are possible or are a risk is not enough. Not giving any advice or referring the client to an immigration lawyer is also insufficient. The Sixth Amendment, as interpreted in Padilla and Nkiam, places the obligation on defense counsel to provide effective advice about immigration consequences in connection with a guilty plea. As noted in Nkiam, suggesting that the client see an immigration lawyer could lead a client to believe erroneously that something could be done to avoid deportation after the criminal proceedings conclude. Sl. op. at 23 n.1; see also Al Kokabani v. United States, 2010 WL 3941836 (E.D.N.C., June 10, 2010) (holding that advising clients to confer with an immigration lawyer falls below objective standard of reasonableness for effective assistance of counsel). A judge’s general advisement during the plea colloquy about potential immigration consequences is not an adequate substitute for specific advice by counsel. See Nkiam, sl. op. 24–25.
Can attorneys meet their Sixth Amendment obligations by telling all noncitizen clients that they will face immigration consequences as a result of the conviction, even when that may not occur? The answer is no because such advice is likewise inaccurate and could lead a client to reject a favorable plea in the mistaken belief that adverse immigration consequences would result. See generally Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2011) (holding that attorney may be found ineffective if advice led to improvident rejection of plea offer). Such blanket advice also could lead clients not to seek the assistance of an immigration attorney after the criminal proceedings in the mistaken belief that adverse immigration consequences are inevitable.
The U.S. Supreme Court’s directive in Padilla, reaffirmed by the Court of Appeals in Nkiam, undoubtedly asks a lot of defense attorneys. As a practical matter, defense attorneys have to do sufficient investigation to determine whether the potential immigration consequences of an offense are clear or unclear. Armed with this information, however, defense attorneys can try to negotiate a plea that best meets their noncitizen clients’ criminal and immigration concerns.
As a starting point for understanding the immigration consequences of a conviction, defense counsel can refer to the 2008 edition of the School of Government’s manual Immigration Consequences of a Criminal Conviction in North Carolina. With support from the Office of Indigent Defense Services, the School is working on a new edition of the manual, which will incorporate changes in the law since 2008. We hope to release it by the summer of 2016.