Implications of Padilla v. Kentucky for California Defense Counsel

By Norton Tooby

"[A]ccurate legal advice for noncitizens accused
of crimes has never been more important."
Padilla v. Kentucky (USSC March 31, 2010).

Introduction

On March 31, 2010, the United States Supreme Court held, 7-2, that because deportation is an integral part of the penalty that may be imposed on defendants who plead guilty to specified crimes, defense counsel must accurately inform a defendant of any risk of deportation created by the plea. Justice Stevens, writing for the five-member majority, held that defense counsel's failure to do so constitutes constitutionally deficient performance in violation of the right to effective assistance of counsel protected by the Sixth Amendment to the United States Constitution. The question whether Padilla was entitled to reversal of the conviction depended on whether he has been prejudiced, i.e., whether a decision to reject the plea bargain would have been rational under the circumstances, a matter remanded for decision by the Kentucky courts in the first instance. Padilla v. Kentucky, 130 S.Ct. 1473 (U.S.C. March 31, 2010).

This article will discuss the implications of this decision for California criminal defense counsel. There is one important issue the Supreme Court did not discuss: the fact that immigration consequences can derail the most carefully constructed purely criminal disposition. The defendant may be eligible for, and benefit from, any number of rehabilitative programs, such as alcohol or drug rehabilitation programs, anger management classes, probation or parole supervision, job training programs, boot camp, hospital treatment programs, out-patient programs, English as a Second Language courses, school of various kinds, work and school furlough, half-way houses, community correctional centers, other forms of minimal supervision custody arrangements, home detention or electronic monitoring programs, and the like. An immigration hold, however, can derail them because the defendant cannot get out of custody to participate in them. Criminal counsel must anticipate this problem and try to solve it in advance by obtaining a disposition that does not trigger deportation. We therefore need to research the immigration consequences of a disposition, not only to protect the clients immigration status, but also in order to do our core job of minimizing the crime, and minimizing the time.

Impact on Existing California Law

Padilla did not work much change on the California law on this subject, because in California, since 1987, the First District Court of Appeals has held it is ineffective assistance of counsel to fail to investigate the federal immigration consequences of a disposition and to fail to advise a foreign national defendant of them before plea. People v. Soriano, 194 Cal.App.3d 1470 (1987)(ineffective assistance of counsel for failure to investigate the immigration consequences and advise a noncitizen of them prior to plea). The Fifth District Court of Appeal held it to be ineffective assistance to fail to request a non-deportable sentence. People v. Barocio, 216 Cal.App.3d 99 (1989). The California Supreme Court has previously held it to be ineffective assistance of counsel to give affirmative misadvice to a noncitizen concerning the immigration consequences of a plea. In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr. 2d 431 (2001). The Sixth District Court of Appeals held it to be ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense. People v. Bautista, 115 Cal.App.4th 229 (2004). The holding of Padilla, therefore, does not significantly change California law concerning effective assistance to noncitizen defendants in advising them of (helping them avoid) disastrous immigration consequences of criminal convictions.

Padillas major effect on California law is that the California Supreme Court must now recognize that a failure to advise a defendant can constitute ineffective assistance of counsel, an issue on which it was as yet unpersuaded in 2001 when it decided Resendiz.

The United States Supreme Court's decision in Padilla underscores our responsibility to try to protect our noncitizen clients in these ways, and will hopefully increase the attention paid to existing California law on the subject and the resources devoted to helping defendants avoid immigration damage. In addition, it also emphasizes that a number of easy answers do not discharge counsel's obligation: Counsel must actually investigate these important issues, learn the client's nationality and immigration status, and attempt to defend him or her against immigration disaster, and criminal disaster, by finding and pursuing an immigration-safe disposition.

(1) It is not good enough just to say deportation "might" happen, and refer the client to an immigration lawyer. The United States Supreme Court held that when the deportation consequences are clear, defense counsel must themselves give the specific advice directly to the client.

The example of when these consequences are clear was a controlled substances conviction. The Supreme Court held that defense counsel must advise the defendant of the removal consequences of any conviction relating to a controlled substance, because "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." (Id. at ___.) The court continued: "Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses." (Ibid.)

The controlled substance ground of deportation is similar in structure and ease of interpretation to most conviction-based grounds of deportation. Of the 52 different conviction-based grounds of deportation, most are no more complex or difficult to decipher. See N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS, APPENDIX A, GROUNDS OF DEPORTATION (2007). There are several which are arguably more difficult to interpret, such as the crime of moral turpitude ground, INA 237(a)(2)(A) (i)(I), 8 U.S.C. 1227(a)(2)(A)(i)(I), the aggravated felony miscellaneous firearms conviction ground, INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), and the aggravated felony crime of violence ground. INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F). Even those grounds, however, have been elaborated by practice aids that make it relatively easy to tell when a conviction falls within the ground of removal. Once defense counsel has assumed the obligation to research the actual immigration effects of a conviction, it is an easy matter to inform the defendant. If the answer is clear, so is the advice. If the answer is obscure, the attorney merely needs to communicate that to the client as well. If the client wants more information, it is easily available from more research or expert consultation by telephone or in person.

The Supreme Court also recognized that it may sometimes be difficult to determine the immigration consequences of a conviction:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. FN10 But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

(Id. at ___.) In a footnote, the court commented: "Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel's advice." (Id. at ___, n.10.)

(2) In addition, the Supreme Court suggests that even correct advice is not necessarily enough. Counsel should attempt to avoid the adverse consequences:

Moreover, the court wrote with approval of including the avoidance of immigration consequences in the plea bargaining process:

Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. 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 dismissal of a charge that does.

(Id. at ___.) This strongly implies that defense counsel would not stop at merely giving advice concerning the adverse immigration consequences of a plea: counsel must go further, and try to avoid those consequences, "as by avoiding a conviction for an offense that automatically triggers the removal consequence." (Ibid.)

A failure to do this may thus constitute a "failure to defend" variation of immigration-related ineffective assistance of counsel. See, e.g., People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (2004).

In addition, this language should be useful in countering the bogus argument offered by prosecutors in opposition to negotiating an immigration-harmless disposition: that it is somehow an equal protection violation of the rights of U.S. citizen defendants to do so.

Required Advice

In summary, the Supreme Court held that defense counsel must advise their clients on a number of important immigration consequences of a conviction: whether the conviction makes the client eligible for deportation, removal, inadmissibility, exclusion, or relief from removal. In addition, defense counsel must describe the degree of risk: whether removal is automatic, virtually inevitable, or merely possible. The concurring opinion's suggestion that all counsel need do is inform the defendant there is some risk of removal or other, and suggest that the client call an immigration lawyer, was rejected by the majority opinion. Defense counsel must learn of the nature and degree of these risks, and inform the client prior to plea, to render effective assistance of counsel. Defense counsel must attempt to protect the client against these risks, by avoiding if possible a conviction that subjects the client to possible removal, or disqualifies the client from eligibility for relief from removal. The attorney can try to protect the client against these risks by engaging in plea bargaining with these goals in view, or by taking a case to trial in an effort to avoid immigration consequences when they are sufficiently great to justify the risk " in the client's eyes " of penal consequences.

(1) Risk of Deportation. The Supreme Court concluded: "The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." (Id. at ___.) The "risk of deportation" means not only that counsel must inform the client that there exists some risk or other of deportation, but must inform the client of the degree of the risk of deportation. The Supreme Court repeatedly referred to different levels of risk. Sometimes, it referred to situations in which deportation is "virtually invitable." Other times, it referred to "automatic deportation." (Id. at ___.)

(2) Automatic Deportation. The Court held that "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation." (Id. at ___.)

(3) Removal. The Court repeatedly referred both to deportation and removal. (E.g., id. at ___ ["In its view, neither counsel's failure to advise petitioner about the possibility of removal, nor counsel's incorrect advice, could provide a basis for relief."]; ___ ["Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses."].) The Court specifically referred to the change in the name of deportation proceedings from "deportation" to "removal," in which removal proceedings now include both the former deportation proceedings, and former inadmissibility or exclusion proceedings. Inadmissibility also results in "removal," so counsel must therefore inform the client of the level of risk of inadmissibility or exclusion, as well as deportation.

(4) Eligibility for and Bars to Relief. The Court has previously recognized, and repeated in Padilla, its view of the importance of reaching a disposition in a criminal case that allowed the noncitizen to remain eligible to apply in immigration court for a waiver of deportation or other relief from removal:

Likewise, we have recognized that preserving the possibility of discretionary relief from deportation under 212(c) of the 1952 INA, 66 Stat. 187, repealed by Congress in 1996, would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial. St. Cyr, 533 U.S., at 323. We expected that counsel who were unaware of the discretionary relief measures would follo[w] the advice of numerous practice guides to advise themselves of the importance of this particular form of discretionary relief. Ibid., n. 50.

(Id. at ___.) Defense counsel must advise the client of the risk that the disposition of the criminal case will disqualify the client from eligibility to apply for relief from removal.

(5) Deportability. Even if the plea does not make deportation "virtually invitable," the fact that the client is subject to deportation is a drastic immigration consequences of which counsel must make the client aware. This is made clear by the Court's reference to the ground of deportability based upon a controlled substances conviction. The Supreme Court held that defense counsel must advise the defendant of the removal consequences of any conviction relating to a controlled substance, because "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." (Id. at ___.) The court continued: "Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses." (Ibid.) This ground of deportation, like all conviction-based grounds of deportation except aggravated felonies, makes the client "eligible for deportation" but does not disqualify him or her from eligibility for discretionary cancellation of removal. INA 240A(a)(3), 8 U.S.C. 1229b(a)(3). The Supreme Court, in essence, held that defense counsel must inform the client when a plea will make him or her deportable, even if it does not disqualify the client from eligibility for discretionary relief from removal, as in the case of a simple controlled substances conviction, even if it is not a drug-trafficking conviction. Padilla himself was convicted of possession of marijuana, which made him eligible for removal on the basis of a controlled substances conviction, but did not disqualify him from eligibility for discretionary relief from removal. Counsel for years have been expected to do this under existing standards of practice. (Id. at ___.) All it takes is a phone call to an immigration lawyer experienced in criminal issues, and to read the text of the statute.

Advice " Any Advice " Is Not Enough

Advice, even accurate advice, is not enough to discharge defense counsel's obligation in this area any more than it is in the purely criminal task of negotiating a plea. Is advice, even accurate advice, sufficient as to the direct penal consequences of a plea? No. We owe our clients the ethical obligation of vigorous representation. It is not enough merely to tell them the criminal axe is coming down on their necks. We must try to prevent the axe from decapitating them. In the criminal context, we obviously need to gather the client's equities, investigate and assemble exculpatory and mitigating evidence, and use it to try to negotiate a favorable result to minimize the crime and minimize the crime. In doing our normal job, we need to investigate the immigration facts of the case, assemble exculpatory and mitigating evidence of the immigration situation, and use it to try to negotiate a favorable result to minimize the crime and minimize the crime. We have not even got to Padilla yet, but already it is obvious we need to investigate and research the immigration situation in order to do our regular job.

In addition, the California cases mentioned above, as well as Padilla, all require " explicitly or implicitly " that we move beyond mere advice, however accurate, and swing into action. In Soriano, supra, the client faced the common situation in which a sentence of 365 days or more triggered deportation, but a sentence of 364 days or less did not. It is implicit in Soriano that defense counsel needed to do more than just give accurate advice; she needed to try to obtain a non-deportable sentence of 364 days or less. In Barocio, supra, the holding was explicit: defense counsel rendered ineffective assistance by failing to make a motion for a Judicial Recommendation Against Deportation, i.e, a motion for a non-deportable sentence. In the same context, in which a 365-day sentence triggers deportation, defense counsel needed to try to persuade the prosecution and court to impose a non-deportable sentence of 364 days or less. In Resendiz, supra, the Supreme Court was less explicit, but nonetheless made it clear that reversal would be required if the plea would not have been entered but for the affirmative misadvice. In Bautista, supra, the Sixth District was clear on what action was required: defense counsel must recognize that a plea to a more serious count was immigration-safe, and push for that disposition. Bautista is not at all about advice. It is exclusively about action: the need to identify and pursue an immigration-safe disposition.

Padilla, itself, makes this clear. The Supreme Court strongly suggested that once counsel has ascertained the adverse immigration consequences, counsel must attempt to avoid them. It cited with approval a Second Circuit rule holding ineffective assistance occurred when defense counsel failed to request a Judicial Recommendation Against Deportation.

In light of both the steady expansion of deportable offenses and the significant ameliorative effect of a JRAD, it is unsurprising that, in the wake of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Second Circuit held that the Sixth Amendment right to effective assistance of counsel applies to a JRAD request or lack thereof, see Janvier, 793 F.2d 449. See also United States v. Castro, 26 F.3d 557 (C.A.5 1994). In its view, seeking a JRAD was part of the sentencing process, Janvier, 793 F.2d, at 452, even if deportation itself is a civil action. Under the Second Circuit's reasoning, the impact of a conviction on a noncitizen's ability to remain in the country was a central issue to be resolved during the sentencing process-not merely a collateral matter outside the scope of counsel's duty to provide effective representation.

(Id. at ___.)

Moreover, the Supreme Court wrote with approval of including the avoidance of immigration consequences in the plea bargaining process:

(Id. at ___.) The Court implied that defense counsel could not stop at merely giving advice " even accurate advice -- concerning the adverse immigration consequences of a plea: counsel must go further, and try to avoid those consequences, "as by avoiding a conviction for an offense that automatically triggers the removal consequence." (Ibid.)

A failure to do this may thus constitute a "failure to defend" variation of immigration-related ineffective assistance of counsel. See, e.g., Bautista, supra; (ineffective assistance of counsel for failure to propose an alternative plea to a greater charged offense that would not trigger deportation); Barocio, supra (ineffective assistance of counsel for failure to request a non-deportable sentence); Soriano (ineffective assistance of counsel for failure to request a non-deportable sentence of 364 days in lieu of a deportable sentence of 365 days). These favorable California decisions represent logical implications of the basic principles laid down in Padilla, and now apply, not only in California, but in every jurisdiction in the United States.

Basic Procedure

The basic approach to protecting clients' immigration status is quite simple:

A. Investigate. Obtain exact information on the clients immigration situation. Use a form like the Intake Form, attached. Get the client's complete criminal history, including elements of each offense of conviction and details of each sentence imposed. Once the information is obtained, counsel can develop a defense strategy by creating a "chronology" of the critical immigration and criminal history dates on which important events occurred. It can be kept up to date with each change in the law, and will provide an important tool for the ongoing development of the strategy.

B. Consult an immigration expert to determine realistic criminal goals that can minimize immigration consequences. This expert can be:

1. An in-house immigration expert.

2. A consultation service such as that provided by the Immigrant Legal Resource Center. See IV, Resources, below.

3. A specific immigration lawyer experienced in criminal immigration issues.

Continue to consult with immigration counsel since additional immigration questions frequently arise during the course of the case.

C. Balance Immigration and Criminal Goals. Determine with the client how important the immigration goals are, as opposed to traditional criminal defense goals, if they conflict.

D. Formulate a strategy that balances the adverse immigration consequences with the direct penal consequences of the criminal case, in light of the desires of the client. Working together, defense counsel and the immigration expert can go over the chronology, analyze the clients immigration situation at each point in time, discover the immigration damage caused by each significant criminal event, discover a solution to each problem, and evaluate the chances of success in obtaining each solution.

For a quick checklist of immigration consequences of specific offenses, go to www.ilrc.org, choose "Info on Immigration Law," choose Criminal and Immigration Law, and download the California Quick Reference Guide to California Convictions, organized by Penal Code section. For more in-depth information, see K. Brady, DEFENDING IMMIGRANTS IN THE NINTH CIRCUIT: IMPACT OF CRIMES UNDER CALIFORNIA AND OTHER STATE LAWS (2009), or N. Tooby & J. Rollin, SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005).

E. Try to Obtain An Immigration-Safe Disposition. Use standard criminal defense techniques to try to achieve the client's goals.

F. Final Advice to Client. At the conclusion of the case, we should inform the client of the immigration consequences of the final disposition and arm him or her with information on how to confront immigration authorities.

This same approach is applicable no matter what procedural stage the criminal case has reached: the beginning of the case, during plea bargaining, during litigation, during sentencing, during probation violation proceedings, during juvenile proceedings, as well as during appeal and other post-conviction proceedings.

Relationship of State Criminal Law to Federal Immigration Law

Immigration laws governing the deportation process are federal in nature, passed by Congress. Most aspects of immigration law are uniform national federal rules. See N. Tooby & J. Rollin, CRIMINAL DEFENSE OF IMMIGRANTS 16.35 (2007). The immigration authorities are in general not governed by the idiosyncracies of the laws of the 50 states. The fact that the federal immigration authorities do not go by California state law can lead to serious problems. For example, if a state court withholds a judgment of conviction, so that no conviction exists under state law, defense counsel may assure a noncitizen defendant that no conviction exists. This may be true under state law, but it is false under federal immigration law. Federal law may also clash with state law concerning the circumstances in which a conviction is later erased. Many states have state rehabilitative statutes that allow a defendant to withdraw a plea and have the charge dismissed as a reward for successful completion of probation. Under state law, the defendant no longer has a conviction. Under federal immigration law, however, the conviction still exists, and may trigger deportation. Defense counsel must become aware of the federal immigration law on these subjects, and not mislead the client by advice concerning inapplicable state laws. See generally N. TOOBY, TOOBY'S GUIDE TO CRIMINAL IMMIGRATION LAW: HOW CRIMINAL AND IMMIGRATION COUNSEL CAN WORK TOGETHER (2008) (free copy available as PDF download on www.NortonTooby.com).

State law becomes important, however, when analyzing whether a state conviction triggers a ground of removal. The law of the state in which the conviction was prosecuted must be considered in determining (A) the elements of the offense, (B) whether the offense is considered a felony or a misdemeanor, (C) the sentence imposed, and (D) the maximum sentence. See CRIMINAL DEFENSE OF IMMIGRANTS 16.35.

jurisdiction:

US Supreme Ct