Representing Noncitizen Defendants After Padilla v. Kentucky : Representing Noncitizen Defendants After Padilla v. Kentucky Colorado Criminal Defense Bar CLE
May 4, 2010
Hans Meyer
Meyer Law Office, P.C.
hansmeyerlaw@gmail.com
303.831.0817
Presentation Overview : Presentation Overview I. Background
Context and number for noncitizens in the CJS
People v. Pozo and Colorado’s prior standard
II. Padilla v. Kentucky
Summary of the Decision
Key Points for Defense Counsel
III. Advisement Models & Resources
IV. Basic Immigration Principles
Noncitizens - Context and Numbers : Noncitizens - Context and Numbers Population of Colorado: ~4.8 million
Foreign born population: ~485,000
Undocumented population: ~300,000
Population of mixed-status families: ~750,000
Nearly 20-25% of the population in Colorado that lives below the poverty level are noncitizens
Noncitizens in the CJS : Noncitizens in the CJS State/Fed Immigration Enforcement:
SB 90 (C.R.S. 29-29-103)
2,200 inquiries per month in 2008, or over 25,000 for Colorado in 2008
ICE Access Enforcement Programs:
Criminal Alien Program (221,000 in FY 2008)
287(g) Agreements
Secure Communities (~111,000 in 2009)
People v. Pozo and IAC : People v. Pozo and IAC People v. Pozo, 746 P.2d 523 (Colo. 1987):
1) “We conclude that the potential deportation consequences of guilty pleas in criminal proceedings brought against alien defendants are material to critical phases of such proceedings.”
2) “The determination of whether the failure to investigate those consequences constitutes ineffective assistance of counsel turns to a significant degree upon whether the attorney had sufficient information to form a reasonable belief that the client was in fact an alien.”
People v. Pozo, cont… : People v. Pozo, cont… 3) “When defense counsel in a criminal case is aware that his client is an alien, he may reasonably be required to investigate relevant immigration law.”
4) “This duty stems not from a duty to advise specifically of deportation consequences, but rather from the more fundamental principle that attorneys must inform themselves of material legal principles that may significantly impact the particular circumstances of their clients.”
5) “In cases involving alien criminal defendants, for example, thorough knowledge of fundamental principles of deportation law may have significant impact on a client's decisions concerning plea negotiations and defense strategies.”
Uncle Sam Wants You!to represent noncitizens effectively! : Uncle Sam Wants You!to represent noncitizens effectively!
Padilla Decision: Background : Padilla Decision: Background Jose Padilla – LPR of 25 years, Vietnam veteran
Padilla pled guilty to transportation of a large amount of marijuana based on counsel’s representation to Padilla that he “didn’t have to worry about immigration status since he had been in the country so long.”
This plea trigged mandatory deportation as an “aggravated felony” and stripped Padilla of any defense to removal
Padilla filed PCR motion claiming IAC under the Sixth Amendment for affirmative misadvice regarding deportation consequences
Kentucky Supreme Court’s Decision : Kentucky Supreme Court’s Decision Dismissed Padilla’s IAC claim
Held 6th Amendment guarantee of effective assistance does not extend to advice about immigration consequences because they are merely “collateral”
SCOTUS – Padilla v. Kentucky : SCOTUS – Padilla v. Kentucky Issue: Whether Padilla’s counsel had a Sixth Amendment duty to address the immigration consequences facing the noncitizen defendant.
Holding: Counsel has an affirmative duty to inform her client whether a plea carries a risk of deportation. Failure to fulfill this duty may constitute Ineffective Assistance of Counsel
Padilla v. Kentucky : Padilla v. Kentucky “Accurate legal advice for noncitizens accused of crimes has never been more important” Padilla at 6.
“Deportation is an integral part – indeed sometimes the most important part – of the penalty that may be imposed on noncitizens.” Id.
Our longstanding 6th Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” Id. at 17.
Padilla and the Duty to Advise : Padilla and the Duty to Advise Consequence Clear = Specific Duty to Advise Regarding the Immigration Consequences
Consequence Unclear = General Duty to Advise that Charges or Plea May Carry a Risk of Immigration Consequences
(Not that simple…More on this in a minute)
Reasoning I: : Reasoning I: Dramatic Changes to Immigration Law:
Class of deportable offenses greatly expanded over the last 90 years
Judicial discretion to recommend against deportation (JRAD) has been virtually eliminated
“These changes confirm our view that … deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants...”
Reasoning II: : Reasoning II: Strickland applies to Padilla’s claim:
a) Direct v. Collateral Consequences?
“We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland.”
Seriousness of deportation, combined with its increased integration into the criminal justice system, makes it “uniquely difficult” to classify deportation as a direct or collateral consequence
Reasoning III : Reasoning III 1st prong of Strickland Involves Prof. Standards
TEST: Whether counsel’s representation fell below an objective standard of reasonableness.
Professional Norms = guide for reasonableness
“The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Id. at 9.
NLADA performance guidelines, ABA standard for criminal justice, DOJ standards for indigent defense systems, Amici Curiae, etc…
Key Point #1 – Direct v. Collateral : Key Point #1 – Direct v. Collateral Deportation is a “penalty” not a “collateral consequence” of the criminal proceeding.
The court held that deportation is a “particularly severe penalty” and made clear that the “direct v. collateral” distinction does NOT apply to immigration consequences.
Key Point #2 – Professional Standards Inform Strickland’s 1st Prong for IAC : Key Point #2 – Professional Standards Inform Strickland’s 1st Prong for IAC Professional standards for defense lawyers provide the guiding principles for what constitutes effective assistance of counsel.
The court relied on professional standards from the ABA and NLADA that:
Require counsel to determine immigration status
Require counsel to investigate and advise about the immigration consequences of pleas and sentences
Require counsel to investigate and advise about the possibility of discretionary relief from removal
Key Point #3 – Affirmative Advice : Key Point #3 – Affirmative Advice The Sixth Amendment requires affirmative & competent advice regarding immigration consequences
Affirmative misadvice is ineffective
Nonadvice is ineffective
“A holding limited to affirmative misadvice…would give counsel an incentive to remain silent on matters of great importance.”
Key Point #4 – Scope of Duty to Advise : Key Point #4 – Scope of Duty to Advise Scope of 6th Amendment duty may extend not just to advising on deportation but also to the possibility of relief from deportation.
“[P]reserving the possibility of discretionary relief from deportation…would have been one of the principle benefits sought by defendants deciding whether to accept a plea offer or instead proceed to trial.” Id. at 10.
Slide 20 : Advisement Models and Resources
Padilla and the Duty to Advise : Padilla and the Duty to Advise Consequence Clear = Specific Duty to Advise Regarding the Immigration Consequences
Consequence Unclear = General Duty to Advise that Charges or Plea May Carry Risk of Immigration Consequences
Here’s where it gets more complicated…
Padilla and the Duty to Advise : Padilla and the Duty to Advise
Padilla and the Duty to Advise : Padilla and the Duty to Advise Issues raised by a rigid clear v. unclear advisement model:
Clear v. Unclear will develop over time (eg. Carachuri)
Immigration status affects what is clear or unclear
Criminal history affects what is clear or unclear
Defenses to removal and eligibility for adjustment of status affects what is clear or unclear
Statutes which are “divisible” affect clear or unclear
“Clear and Unclear” are not the same as “complicated”
Padilla and the Duty to Advise : Padilla and the Duty to Advise Determining and advising on immigration consequences depends on three major factors:
A) Immigration Status and History
B) Criminal History
C) Divisibility of criminal statute and structure of the plea agreement and record of conviction
(these situations are typically not unclear)
Padilla and the Duty to Advise : Padilla and the Duty to Advise Some examples:
M1 PCS Marijuana
Without investigating factors
With investing factors
M1 Third Degree Assault
Without investigating factors
With investing factors
F6 Motor Vehicle Theft
Without investigating factors
With investing factors
Padilla and the Duty to Advise : Padilla and the Duty to Advise M1 PCS Marijuana
-LPR (7 yrs) + no priors + < 30 gr. = not deportable (clear)
-LPR (7 yrs) + no priors + > 30 gr. = deportable/relief(clear)
-LPR (3 yrs) + no priors + < 30 gr. = not deportable (clear)
-LPR (3 yrs) + no priors + > 30 gr. = deportable/no relief (clear)
-Undoc + no priors + > 30 gr. = deportable/never LPR (clear)
-Undoc + no priors + < 30 gr. = deportable/can waive (clear)
Three Steps To Effective Representation Under Padilla : Three Steps To Effective Representation Under Padilla Investigate imm. status & criminal history
Determine client’s defense goals
Analyze immigration consequences
Step One: Investigate Relevant Facts : Step One: Investigate Relevant Facts Client’s Immigration Status and History
Family Ties and Other Equities
Custody Status and ICE Detainer
Criminal History, Charges, Plea Offer
Step Two: Determine Defense Goals Regarding Immigration Consequences : Step Two: Determine Defense Goals Regarding Immigration Consequences Avoid conviction that triggers deportation
Preserve eligibility to get future immigration benefits (green card, citizenship)
Preserve eligibility for relief from removal
Get out of jail ASAP to avoid ICE
Immigration consequences not a priority
Step Three: Analysis of Immigration Consequences of Charge/Plea Offer : Step Three: Analysis of Immigration Consequences of Charge/Plea Offer Determine likelihood that charge/plea will trigger deportation
Determine impact of charge/plea offer on “discretionary relief” or future eligibility
Determine immigration consequences of counter offers or other plea options
Advisement Models : Advisement Models Private Defense Attys:
Develop firm expertise in crim imm issues
Contract Immigration Attorney to advise on consequences (similar to expert, investigator)
Refer out the case ADC and PD Systems:
Dedicated central or regional resource(s) within the system (PT/FT)
Contract outside system with nonprofit, firm, etc…
Court appointment of counsel to advise
Resources for Defense Counsel : Resources for Defense Counsel Defending Immigrants Partnership-www.defendingimmigrants.org
Compilation of extensive print resources, including practice advisories, manuals, and other free resources for criminal defense counsel
Live and online trainings on crim imm issues
News page on new developments in the law
National Immigration Project –www.nationalimmigrationproject.org
Immigrant Defense Project-www.immigrantdefenseproject.org
Immigrant Legal Resource Center-www.ilrc.org
Questions and Answers : Questions and Answers Hans Meyer
Meyer Law Office, P.C.
hansmeyerlaw@gmail.com
303.831.0817
Slide 34 : Basic Immigration Principles
Terminology- Types of Immigrants : Terminology- Types of Immigrants Lawful Permanent Resident (LPR)- a person with a green card authorized to live and work in the U.S.
a) This class of immigrants is generally subject to the grounds of deportability at INA § 237(a)(2).
b) however, the grounds of inadmissibility under INA § 212(a)(2) also apply if lawful permanent residents leave the country and attempt to reenter.
Terminology- Types of Immigrants : Terminology- Types of Immigrants Undocumented Immigrant- generally, a person who unlawfully entered the country without permission and who has not yet been “admitted” to the United States.
a) an admission is a legal term of art meaning the person has been inspected and authorized by an immigration officer to enter the U.S.
b) undocumented immigrant clients are generally subject to the grounds of inadmissibility under INA § 212(a)(2).
Terminology- Types of Immigrants : Terminology- Types of Immigrants And a whole bunch of other kinds of immigrants.
a) visa overstays
b) current visa holders
c) other types of immigration status (Temporary Protected Status, Asylum, etc…)
Terminology – Inadmissible vs. Deportable : Inadmissible
INA 212(a) – reasons we can keep you out
Applies generallly to:
Undocumented
LPRs seeking re-entry
Visa overstays Terminology – Inadmissible vs. Deportable Deportable
INA 237(a)(2) – reasons we can kick you out.
Applies generally to:
LPRs
People with visa status
Visa overstays
Terminology- “Conviction”The Quick and Dirty PD Translation : Terminology- “Conviction”The Quick and Dirty PD Translation A Conviction for Immigration Purposes:
1) Guilty Pleas and Guilty Verdicts.
2) Deferred Judgments and Sentences. Matter of Chairez-Castaneda, 21 I&N Dec. 44 (BIA 1995)
2) Probation-only sentences.
Usually Not A Conviction for Immigration Purposes:
1) Deferred Prosecutions. Matter of Grulon, 20 I&N Dec. 12 (BIA 1989)
2) Juvenile Adjudications. Matter of Ramirez-Rivero, 18 I&N Dec. 185 (BIA 1981); Matter of Devison, 22 I&N Dec. 1362 (BIA 2000) (but watch out for reason to believe a drug trafficker)
Terminology- “Sentence” : Terminology- “Sentence” A “Sentence” under INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A) is any term of imprisonment or confinement ordered by a court “regardless of any suspension of the imposition or execution of that sentence in whole or in part.”
Quick and Dirty Translation:
suspended sentence = sentence for full term
Terminology- Divisible Statutes : Terminology- Divisible Statutes Some conduct under the statute
DOES
trigger immigration consequences
e.g. M1 Possession of Marijuana > 30 grams Some conduct under the statute
DOES NOT
trigger immigration consequences
e.g. M1 Possession of Marijuana 30 grams or less
Terminology- Record of Conviction : Terminology- Record of Conviction The Record of Conviction (ROC) includes:
1) Charging Documents (Summons and Complaint; The Information, etc…)
2) The written Rule 11 Agreement plea & sentence
3) Jury Instructions (if as the result of trial)
4) Factual conclusions made by the court to which the defendant assents
Terminology – Record of Conviction : Terminology – Record of Conviction Not part of the “Record of Conviction”:
Dismissed counts
Police reports
Witness statements
Affidavits and Arrest Warrants
Statements made to officers, ICE, or others
What allegedly happened “out in the streets”
Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008) : Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008) New Test of Moral Turpitude in Immigration Law
To be a CIMT under the new test, the conviction must be for “reprehensible” conduct and have some degree of scienter.
If the statute does not include as an element specific intent, deliberateness, willfulness or recklessness, then it should not be a CIMT.
New Three-Part Test under Silva-Trevino for determining whether a crime is a CIMT for immigration purposes.
New Three-Part CIMT Test under Silva-Trevino : New Three-Part CIMT Test under Silva-Trevino Step 1 - Does conduct necessary for conviction always (or never) define a crime involving moral turpitude (CIMT) in all cases that have a “realistic probability” of being prosecuted?
Step 2 - Consult the traditional record of conviction (charging doc, Rule 11 plea, count of conviction, elemental sheet) to see whether it clearly and convincingly resolves the CIMT inquiry.
New Three-Part CIMT Test under Silva-Trevino : New Three-Part CIMT Test under Silva-Trevino Step 3 – Where the record of conviction does not convincing answer whether the offense involves moral turpitude, allows a fact finder to examine evidence outside of the record of conviction to determine whether divisible statute was a CIMT.
A fact finder cannot litigate again facts that were necessarily concluded by the criminal court.
A fact finder could also determine that in some cases it would not be appropriate to hear evidence beyond the record of conviction.
Nijhawan v. Holder, 129 S.Ct. 2294 (2009) : Nijhawan v. Holder, 129 S.Ct. 2294 (2009) “generic” v. “circumstance specific” grounds
the categorical analysis applies to proving the elements of generic offenses
the language of certain aggravated felony ground are examples of “circumstance specific” language, where a court can go past the elements of the statute and record of conviction under certain circumstances in order to determine whether a “circumstances specific” element has been met.
Issue – What current and future grounds are likley to be considered “circumstance specific”?
Generic v. Circumstance Specific Grounds : Generic v. Circumstance Specific Grounds For a generic aggravated felony ground, the traditional categorical analysis applies.
For a “circumstance specific” ground, the record of conviction is not the limit of the evidence a fact finder can consider in deciding whether the respondent’s conviction constitutes an aggravated felony.
Could potentially apply to other grounds of inadmissibility and deportability
Slide 49 : Categories of Offenses that Trigger Immigration Consequences
Terminology – Inadmissible vs. Deportable : Terminology – Inadmissible vs. Deportable Grounds of Inadmissibility:
Crimes that trigger inadmissibility:
Crimes Involving Moral Turpitude (CIMT)
Controlled Substances
National security offenses
Other general offenses Grounds of Deportability:
Crimes that trigger deportability:
Crimes Involving Moral Turpitude (CIMT)
Aggravated Felonies (AF)
Controlled Substances
DV, Child Abuse, VPO
Firearms Offenses
Document fraud, false claims to citizenship, other crimes
Categories of Problem Offenses : Categories of Problem Offenses “Aggravated Felony” (AF)
-includes “crime of violence” 18 U.S.C. § 16
-does not have to be a “felony” or “aggravated”
“Crime Involving Moral Turpitude” (CIMT)
“Domestic Violence Offenses” (DV)
-“crime of violence” 18 U.S.C. § 16
“Controlled Substance Offenses” (CSO)
“Firearms Offenses” (FO)
Categories of Crimes : Categories of Crimes Aggravated Felony
the worse of all possible worlds
Definition
By type of offense
By sentence
By meeting “Crime of Violence” definition
Analysis
Sentence dependent?
Conviction dependent?
Examples CROSS REFERENCE
CIMT
Firearms
Drugs
Categories of Crimes : Categories of Crimes Crime Involving Moral Turpitude
The “inherently vile” crime
Definition
By type of offense
Analysis
Petty offense exception
Examples CROSS REFERENCE
AG FEL
DV
Terminology-The Crime of Moral Turpitude (CIMT) : Terminology-The Crime of Moral Turpitude (CIMT) The words “moral turpitude” refer to conduct which is inherently base, vile, or depraved, contrary to accepted rules of morality.” Matter of Franklin, 20 I&N Dec. 867, 878 (BIA 1994); Matter of T-, 2 I&N Dec. 22 (BIA 1944)
Evil intent crimes involve moral turpitude. Matter of Serna, 20 I&N Dec. 579, 582 (BIA 1992).
Knowledge or Intent crimes most often involve moral turpitude. Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997).
Reckless conduct can constitute moral turpitude. Matter of Franklin, 20 I&N Dec. 867 (BIA 1994) (involuntary manslaughter).
Negligent and Strict Liability offenses, depending on the crime, can occasionally involve moral turpitude
Categories of Crimes : Categories of Crimes Controlled Substance Offenses
Possession, trafficking
Definition
By type of offense
Analysis
Federal Controlled Substances Act
Examples CROSS REFERENCE
AG FEL
Categories of Crimes – Controlled Substance Offenses : Categories of Crimes – Controlled Substance Offenses Bad for Undocumented Folks
Bad for LPRs
can make you inadmissible or deportable
Avoid ANY drug conviction if at all possible