Originally Posted and published in Missouri Lawyers Weekly on April 10, 2010

On March 31, 2010 the Supreme Court of the United States decided the Case of Padilla vs. Kentucky.  It is, in this author’s opinion, a stunning opinion supporting immigrant’s rights in a time where the Comprehensive Immigration Reform debate is heating up both sides of the aisles.  In a far from unanimous opinion, Justice Stevens, joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor, writes the opinion for the court.  Justices Alito and Chief Justice Roberts concurred and Justices Scalia and Thomas dissented.

Padilla, the Petitioner is a Lawful Permanent Resident that had lived in the United States legally for over 40 years.  He pled guilty to a drug distribution charge in Kentucky state court.  This conviction made virtually immediately deportable under INA 8 USC 127 § 237(a) (2) (A) (iii) as an aggravated felon and §237 (a)(2)(B)(i) for a conviction of a controlled substance other that possession of Marijuana for personal use under 30 grams.  Mr. Padilla, who had also served with Honor in the US Armed Forces during the Vietnam War, claimed during post conviction relief that he did not have constitutionally competent counsel because his counsel did not inform him of the severe consequences to his immigration status, and, in fact, erroneously advised him that “he did not need to worry about his immigration status because he had been in this country for so long.”  559 US ______(2010) at 1.

The Supreme Court of Kentucky denied Mr. Padilla’s claim of ineffective assistance of counsel stating that “the Sixth Amendment’s guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a ‘collateral’ consequence of his conviction” Id. at 2.  Mr. Padilla appealed to the Supreme Court of the United States and in another surprising pro-immigrant opinion the Court agreed with Mr. Padilla, that a “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” Id. at 2 

Justice Stevens goes into a long and very detailed description of US Immigration Law over the past 90 years.  He concludes with the draconian changes in the Immigration law over the past 20 years stating:

“These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  The importance of accurate legal advice for noncitizens accused of crimes has never been more important.  These changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part-of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id. at 6

Immigration law is far from clear, however and many experienced Immigration Practitioners would often find themselves unable to provide a clear and concrete answer about many criminal sentences and situations.  The Court addressed this situation as well.  In the instant case, the deportation consequences of Mr. Padilla’s guilty plea are in the plain text of the statute and could have easily been determined with even a cursory reading on the relevant statute.  The Court suggests that in cases such as Padilla, the Criminal Defense attorney has a greater duty to provide clear and accurate advice on the easily determinable immigration consequences of a guilty plea.  However in situations where the law is less clear “the duty of the private practitioner in such cases is more limited.  Where the law is not succinct and straightforward…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.” Id. at 12.

In their concurrence, Justice Alito and Chief Justice Roberts agree that a defense attorney fails to meet the Strickland v. Washington, 466 US 668 (1984) standard of effectiveness if that attorney “misleads a noncitizen client regarding removal consequences of a conviction.” 559 US _______(2010) Opinion number 08-651 at 1.  However they believe that the holding that a “criminal defense attorney must provide advice in this specialized area in those cases in which the law is ‘succinct and straightforward’-but not, perhaps, in other situations.” Id. at 1.   The concurring opinion believes that this “halfway test” Id. at 1 is vague and may cause too much confusion and litigation.  Their worry is that too often criminal offenses are not clearly enumerated within the immigration statute, as in Padilla, but rather fall under the murky and confusing waters of “crimes involving moral turpitude” or “aggravated felonies” which these Justices rightly explain encompass a dizzying array of state and federal felonies and misdemeanors that vary wildly from Circuit to Circuit.  The concurrence wishes that the ruling did not require affirmative advice but simply prohibited affirmative misadvice.

Finally the dissent focuses on the fact that the Sixth Amendment only guarantees effective assistance of counsel against criminal prosecution and not to matter that are collateral.  Similarly the dissent states that even affirmative misadvice on collateral matters should not renders the attorney ineffective for Sixth Amendment purposes.  Justices Scalia and Thomas feel that statutory provisions would be more effective in addressing these specific concerns than a Constitutional mandate. 559 US ________(2010) Opinion 08-651.

As a practitioner of both Criminal defense and Immigration, I can relate to the complexities of this issues that have been addressed in each opinion.  As a fervent supporter of Comprehensive Reform I cheer this opinion, as it is a beautiful recognition of the human rights afforded to all people, citizen or no, that are embodied in our Constitution and ideals of this country.  Further, I think these three vastly differing opinions show the desperate need for Comprehensive Immigration Reform.  In reading each on these opinions, there is only one thing that is universally agreed upon:  Immigration Law is burdensomely complex.   The complexities and problems that arise from Padilla are just the tip of a very large iceberg of complex issues that plague our current immigration system.  This case only focuses on immigration consequences of criminal activity.  This is just one cog in the massive amount of law that makes up this system that is so easily discussed by talking heads and pundits and understood by so few.

However, as a private practitioner who pays her own malpractice insurance, I also understand the concerns of the concurrence.   It seems obvious that we should refrain from telling our clients wrong information and giving wrong advice.  But requiring that criminal defense attorneys also have a duty to inform clients of immigration consequences seems like a tremendous task, especially for our already overly burdened public defender system.  I can certainly empathize with the concerns expressed by the Concurrence opinion for the practitioner who has no experience in the immigration arena.  This new mandate is probably pretty terrifying.

But I am not sure that the flood of litigation over the often-inscrutable immigration laws is sure to follow.  The Court seems to say that if you are going to practice criminal defense and represent noncitizens then you should have a working knowledge of the clearly enumerated crimes and their consequences listed in the immigration code (there are not that many specifically enumerated)  and at least a general knowledge of the less clearly defined crimes like “Crimes involving Moral Turpitude” (CIMT) or “aggravated felonies,” at lease enough to recognize a certain crime might fall into one of these nebulous categories and advise your clients that there may be consequences to their immigration status and that further advice should be obtained from someone specializing in immigration law.

The solution seems clear in the private arena, one solution to this problem of overburdening our criminal defense attorneys might be co-counseling with an immigration attorney regarding sentencing.  This seems to be a common sense and simple solution to the real concerns of the Justices and those criminal defense attorneys not versed in immigration law.  Telling your client there may be consequences and further more specialized advice is needed does not seem to be an undue burden nor does insisting that an immigration attorney be a part of a defense team before agreeing to representation in more serious cases.  The American Immigration Lawyers Association (www.aila.org) has an extensive list of immigration practitioners all over the country that a criminal defense attorney could easily give to the client in a referral list.  The solution is less clear in an already over burdened public defender system but could easily include in house continuing legal education taught by immigration practitioners or even a volunteer attorney project list of people to consult when it comes to sentencing.

Whatever the solution, I am sure this will not be the last we hear about immigration and criminal consequences.  One thing is clear, the landscape and scope of our responsibilities as attorneys is growing.  Criminal pleas have far-reaching consequences in many aspects of a persons life, but the consequences in the arena of immigration are particularly grave.  For the Noncitizen criminal defendant it is not just a matter jail time, probation, records, voting rights, personal property or fines, it is often a matter of living in the United States or being ejected from the country, and often, family, friends, jobs, way or life with little to no possibility of returning.  This is what makes this decision so important.  Deportation is not collateral.  It is very real and for anyone who has ever worked with people faced with deportation and the devastation it causes in a family this decision is a long time in coming.

Click Here for a Link to the Watershed Decision Padilla v. Kentucky.