1 Washington Defender Association’s Immigration Project ___________________________________________________ 110 Prefontaine Place South, Suite 610 Seattle, WA 98104 Ann Benson: Tel: 360-385-2538 Email: abenson@defensenet.org Jonathan Moore: Tel: 206-623-4321 Email: jonathan@defensenet.org How To Advise Noncitizen Defendants: What is “Clear and Unclear” After Padilla v. Kentucky1 April 2010 In its historic decision in Padilla v. Kentucky2 the Supreme Court held that because immigration penalties are inextricably intertwined with the outcome of criminal proceedings, and because of the tremendous importance and potential severity of immigration consequences, criminal defense counsel have a duty under the Sixth Amendment to address the immigration consequences facing a noncitizen defendant in the course of criminal representation.3 This advisory will discuss in particular the Court’s statements about what is required when the immigration consequence is “clear” versus “unclear.” Additionally it will outline the standards set out by the Court, apply them to the basic steps of making an analysis of immigration consequences and highlight the many resources available to criminal defense counsel. I. Why Padilla’s “Clear” vs. “Unclear” Language Alone Does Not Provide An Effective Standard For Determining Competent Immigration-Related Advice. In the initial attempts to determine the scope of immigration-related advice required to be effective under Padilla, some criminal defense counsel have singled out the Court’s use of the “clear” vs. “unclear” language in the opinion. Padilla at 23-24. Some criminal defense counsel seek to obtain a list of offenses that carry “clear” immigration consequences, with the idea that they will warn a defendant specifically about a plea to these offenses, while just giving a generalized warning about offenses that carry “unclear” immigration consequences. While this 1 This advisory was adapted for Washington State from the original advisory written by Katherine Brady and Angie Junck of the Immigrant Legal Resource Center, with the input and collaboration of the Washington Defender Association’s Immigration Project, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild. 2 Padilla v. Kentucky, 599 U.S. ____ (March 31, 2010). 3 See discussion of the entire case in Defending Immigrants Partnership, “Duty of Criminal Defense Counsel Representing an Immigrant Defendant after Padilla v. Kentucky” at www.immigrantdefenseproject.org. 2 might appear to be an appealing characterization of Padilla, it is an incorrect interpretation of the Court’s decision and should be avoided. In addition to being realistically impractical, this approach is akin to saying that a criminal defender can determine the outcome of a case by simply looking at the initial charging document. In reality, determining whether immigration consequences (not just the likelihood of deportation) of a particular conviction and sentence are clear or unclear requires conducting a complete analysis, the scope and standard of which has been set forth in well-established professional guidelines cited by the Court, as well as by the realities of how immigration consequences attach to a conviction. Padilla must be understood in the context of how a conviction causes an individual to suffer adverse immigration consequences. While the immigration consequences of some offenses can be clearly characterized for – for example, unlawful possession of a firearm comes within the firearms deportation ground – this characterization alone is not enough to give competent advice to a defendant about the consequences of a plea, and we should not lead defenders to believe that it does. The kind of representation to noncitizen defendants envisioned and required by the Padilla Court depends upon numerous factors other than whether a particular offense clearly comes within a ground of deportation or a ground of inadmissibility. Three of these factors are: Immigration Status. The immigration status of the defendant will affect the consequence of a particular plea. For example, a conviction such as unlawful possession of a firearm will cause a lawful permanent resident to become deportable but will have no consequences for many undocumented defendants. Conviction of a different offense might be harmful to an undocumented person, but not make a permanent resident deportable. Criminal History. Analysis of immigration consequences of a plea will vary depending upon the prior criminal record of the individual. For example, if a defendant already is deportable, the defense goal may be to preserve eligibility for relief; or, if the defendant does not have any prior conviction of a crime involving moral turpitude, it is possible that a first such conviction will not make him or her deportable. Specific Structure of the Criminal Statute & Defendant’s Plea Statement. Many criminal statutes are “divisible” in that they reach some offenses that carry an immigration consequence and others that do not. The immigration consequences of a plea can depend upon whether counsel can negotiate a plea to a portion of the statute that avoids/minimizes immigration consequences. This often requires careful crafting of the factual basis for the plea contained in defendant’s plea statement. These are not “unclear” situations. They are the normal issues that are present in the great majority of cases involving noncitizen defendants. Perhaps more importantly, as the Court pointed out, competent representation on these issues goes beyond whether the plea will cause a noncitizen to become deportable, to whether the plea will eliminate eligibility for relief from deportation (“removal”). Drawing up a “list” of clear vs. unclear immigration consequences (assuming such a list could actually be compiled) is, in short, unrealistic and insufficient with the requirements of Padilla. II. What Are The Standards Set Forth In Padilla For Competent Representation of Noncitizen Defendants Regarding Immigration Consequences? 3 In addition to understanding the context for how convictions expose noncitizen defendant’s to immigration consequences, Padilla must also be understood in light of the directives outlined in the professional standards relied upon by the Court in reaching its decision, including the ABA and NLADA standards and commentary outlined below.4 In sum, these standards provide that defense counsel must ascertain a client’s immigration status at the initial interview. Counsel should advise the defendant of the full consequences of any plea or other disposition, including the certain or potential immigration consequences, and ensure that the client understands them. “[C]ounsel should be familiar with the basic immigration consequences that flow from different types of guilty pleas, and should keep this in mind in investigating law and fact and advising the client.” Counsel should be “active, rather than passive, taking the initiative to learn about rules in this area rather than waiting for questions from the defendant.”5 Citing the familiar test in Strickland, the Court in Padilla stated that the first step in an ineffective assistance of counsel inquiry is to determine whether counsel’s representation “fell below an objective standard of reasonableness,” and the second step is to ascertain whether there was prejudice. Padilla v. Kentucky, slip opinion at *19. Regarding the first step, the Court said: The first prong --constitutional deficiency --is necessarily linked to the practice and expectations of the legal community: "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." We long have recognized that "[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable . . . .” Although they are "only guides," and not "inexorable commands," these standards may be valuable measures of the prevailing professional norms of effective representation, especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions and immigration law. Id. at *19-20, citations omitted. Thus the Court identified that major published standards of practice for representing noncitizen defendants are guides for determining counsel’s duty to advise. The Court cited, among such standards, the National Legal Aid and Defender Association (NLADA) Performance Guidelines for Criminal Representation (1995) and the American Bar Association (ABA) Standards for Criminal Justice, Pleas of Guilty (3d ed. 1999). The Court noted that not merely avoiding becoming deportable, but also preserving eligibility to apply for discretionary relief from deportation, is a key interest of a noncitizen that counsel is expected to address. We too have previously recognized that "'[p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence.'" St. Cyr, 533 U.S., at 323, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (quoting 3 Criminal Defense Techniques §§ 60A.01, 60A.02[2] (1999)). 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, 121 S. Ct. 2271, 150 L. Ed. 2d 347. We expected that counsel who were unaware of the discretionary relief measures would "follow[w] the advice of numerous practice guides" to advise themselves of the importance of this particular form of discretionary relief. Ibid., n. 50. 4 For a thorough discussion of these standards see the Defending Immigrants Partnership Padilla Practice Advisory, posted at www.immigrantdefenseproject.org. 5 American Bar Association Pleas of Guilty Standard 14-3.2(f), commentary at p. 127. 4 Padilla slip opinion at * 21-22. The Court then discussed the complexity of the immigration issues that criminal defense counsel may confront. The Court noted that given the obviously wrong advice to Mr. Padilla, “[t]his is not a hard case in which to find deficiency: The consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect.” Id. at *23. The Court turned next to more difficult cases. 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.10 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 * 23-24 The court made clear that counsel will not only advise the defendant of the immigration consequences, but as needed advocate to defend against those consequences in plea bargaining. “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.” Id. at * 31-32. General Advisal & Referral To Immigration Counsel Insufficient. In his minority concurrence with Justice Roberts, Judge Alito stated that he agreed in the result in this case, but disagreed with the requirement to advise that the court imposed upon defense counsel. He pointed out that many basic immigration questions are complex (for example, whether the defendant is a citizen or not), and also posited several complex immigration situations in which the law was both unsettled and complicated. Id. at * 38-44 (concurrence). He asserted that the Court should have found the proper standard of duty to be that “[w]hen a criminal defense attorney is aware that a client is an alien, the attorney should advise the client that a criminal conviction may have adverse consequences under the immigration laws and that the client should consult an immigration specialist if the client wants advice on that subject.” Id. at * 56. None of the five justices who signed the majority opinion agreed with Justices Alito and Roberts that this approach constituted effective assistance of counsel to noncitizen defendants. 1. What Are The Necessary Steps To Identify, Advise & Advocate Against Immigration Consequences? To follow the direction of the Court requiring counsel to competently and ethically represent noncitizen clients, and to avoid potential ineffective assistance of counsel litigation in the future, criminal defense counsel should establish basic procedures for identifying, advising, and, as requested, defending against the immigration consequences of any proposed plea. In short, to adequately analyze immigration consequences in a case, defense counsel must take certain minimum, initial steps in each case, which include: 5 1. Investigate the Facts – this includes indentifying immigration status & history, get complete criminal history and determine whether an ICE detainer has been lodged; 2. Determine client’s defense goals – not every noncitizen client is going to have the same priorities or options with regard to the immigration consequences. Some possible goals could be: Avoid conviction that triggers deportation; Preserve eligibility to obtain future immigration benefits (e.g. LPR status or citizenship); Preserve ability to ask immigration judge to get/keep lawful status & stay in U.S.; Get out of jail ASAP to avoid ICE apprehension; Immigration consequences, including deportation are not a priority. 3. Analyze the immigration consequences of the charged offenses and plea offers and advise client. 4. Defend case according to client’s priorities and options available. Counsel must investigate the specific immigration consequences that the proposed plea, trial, sentence or strategy would have on the client. Depending on the case, the analysis required may be simple or multi-step and, as articulated above, the “clarity” of immigration consequences (e.g. deportation or rendering client ineligible to obtain lawful immigration status) will vary depending upon a host of factors including client’s immigration status, criminal history and current charges. Depending on the case, counsel may be able to advise that the plea is nearly certain to carry or not carry a specific immigration consequence, or may advise that there is a risk that the plea will have a specific immigration consequence, but that the law is not clear. The same analysis must be made before a defendant goes to trial, enters a diversion program or drug treatment, concedes a probation violation, arranges a disposition in delinquency proceedings, and at sentencing, all of which can cause immigration consequences. In some cases the defendant may have to choose whether to prioritize getting a good immigration result versus a lesser criminal penalty. Some immigrant defendants care only about getting the smallest period of incarceration. Other immigrant defendants would trade any concern in order to remain with their families. They would be willing to plead to a more serious offense, take additional time, or even go to trial and risk a significantly higher sentence, if it meant that they might be able to remain in the U.S. with loved ones. Of course, a defendant can only make this crucial decision if he or she understands the potential criminal and immigration penalties. IV. Meeting Padilla’s Challenge: How To Competently Provide The Requisite Assistance In Light Of Current Realities? A challenging question is how are criminal defenders – especially indigent defenders with limited budgets and time – going to be able to provide competent representation? This is a larger discussion that will be undertaken across the country in light of Padilla. While many states are grappling with what this means in the face of existing resource limitations, defenders throughout Washington State have a far less onerous task since the legislature has, for more than ten years, funded the Washington Defender Association’s Immigration Project to provide free, individual case consultation to defense counsel representing noncitizen defendants. Additionally, WDA’s 6 Immigration Project provides an extensive array of written materials on our website, as well as regular education programs throughout the state. While WDA’s Immigration Project staff will be developing resources to assist defenders in further implementing Padilla’s mandate effectively, standard practice must include: o identifying each defendant’s citizenship/immigration status (and criminal history); o Contacting WDA’s Immigration Project for advice; o Assisting the client in determining defense goals in light of the immigration consequences.