Criminal convictions, whether minor or major, can have an impact on the legal options of noncitizens under our immigration laws. For example, a permanent resident may be barred from seeking his citizenship through naturalization for 5 years if he is convicted of shoplifting something as simple as a candy bar. A noncitizen convicted of possession of a controlled substance can be placed under mandatory detention by Immigration & Customs Enforcement while he waits for his immigration court case to be resolved. And noncitizens, regardless of family ties or immigration status, can be punished with removal (deportation) if convicted of an offense that can be categorized as an aggravated felony under the Immigration & Nationality Act.
It seems like many Americans are now realizing what it means for immigrants to be taken away from their families and friends and forcibly sent abroad. This may explain the upsurge of public support for immigration reform. Yet, the deportation of an individual from his adopted homeland has long been recognized as one of the harshest forms of punishment. In the words of one of our nation’s founding fathers:
“If the banishment of an alien from a country into which he has been invited as the asylum most auspicious to his happiness — a country where he may have formed the most tender connections; where he may have invested his entire property, and acquired property of the real and permanent, as well as the movable and temporary, kind; where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for; . . . if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war and of unusual licentiousness on that element, and possibly to vindictive purposes, which his immigration itself may have provoked — if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.” -President James Madison, 4 Elliot Debates 555.
The severity of deportation as a punishment resulting from criminal convictions has also been long acknowledged by our court system. In an 1893 dissenting opinion in Fong Yue Ting v. United States (1893), Justice Brewer stated deportation is a “punishment…oftentimes most severe and cruel.” A hundred and eight years later the Supreme Court declared in its INS v. St. Cyr (2001) decision 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.”
But it was not until March 31, 2010, when the Supreme Court, in Padilla v. Kentucky, finally held that the immigration consequences derived directly from criminal convictions can be so detrimental that criminal defense attorneys are required to advise their noncitizen clients about the potential consequences of a guilty plea. If such advice is not given to a noncitizen client, the client may raise a claim of ineffective assistance of counsel. When this ruling came down, many immigration advocates understood it to be a clarification of a rule that would be applicable retroactively. Unfortunately, on February 20, 2013, the U.S. Supreme Court held in Chaidez v. United States that the Padilla decision created a new rule and that, according to Court precedent under Teague v. Lane (1989), it will not apply retroactively to cases that had final convictions prior to the Padilla decision. The reasoning in Chaidez has received much criticism from scholars and advocates alike. But the Court has answered the question of Padilla retroactivity and has created a clear line of its application. So, what is that line, what are the obligations of defense attorneys, and what options do noncitizens have?
- Padilla Rule: as of March 31, 2010, criminal defense attorneys have been required to advise noncitizen defendants about the risk of deportation as a consequence of guilty pleas. If such advice is not given, defendants may raise a claim of ineffective assistance of counsel.
- Final Convictions Prior to March 31, 2010: Individuals will not be able to raise a Padilla claim of ineffective assistance of counsel if their convictions were finalized before March 31, 2010, and they did not receive advice from their defense counsel regarding deportation consequences of their guilty pleas.
- Final Convictions on or after March 31, 2010: These individuals will be able to use Padilla to challenge convictions where no advice was given as to the deportation consequences of their guilty pleas.
- Strickland Standard Untouched: The Strickland v. Washington (1984) standard of reasonableness still applies in cases with final convictions prior to or after the Padilla ruling where defense counsel misadvised the noncitizen defendant about the collateral consequences of his guilty plea.
- Violation of Other Constitutional Duties: A noncitizen may be able to raise an ineffective assistance of counsel claim in cases where his defense counsel violates a recognized constitutional duty such as effectively negotiating a plea in order to mitigate harm.
Legal representation of defendants violates the Sixth Amendment if it falls below the objective standard of reasonableness under prevailing professional norms. What was once reasonable in 1984 in the representation of noncitizens, may not necessarily be reasonable in 2013. This is because immigration law has gone through many changes in the last three decades and these changes have increased the number of deportable offenses and decreased eligibility of immigration relief for criminal offenders. Justice Sotomayor notes in her Chaidez dissenting opinion that as the immigration consequences for criminal convictions have increased, “the standards of professional responsibility relating to immigration ha[ve] become more demanding.” The Padilla ruling formally recognized this responsibility as part of the criminal defense of noncitizens and the Chaidez ruling set the marker of when this responsibility began. Remaining silent on the immigration consequences of guilty pleas will no longer be an option for criminal defense attorneys. Criminal defense counsel will now need to know their client’s immigration status, as well as how a guilty plea can affect that status or the immigration relief options.
For online resources on this subject go to:
- Immigrant Defense Project: https://immigrantdefenseproject.org/defender
- Immigrant Legal Resource Center: https://www.ilrc.org/
- National Immigration Project of National Lawyers Guild: https://www.nationalimmigrationproject.org/