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Padilla v. Kentucky: Keeping Up with Societal Changes – U.S. Immigration Law Proposals for Legal Professionals in an Effort to Avoid Legal Malpractice because of Ineffective Assistance of Counsel

Padilla v. Kentucky: Keeping Up with Societal Changes – U.S. Immigration Law Proposals for Legal Professionals in an Effort to Avoid Legal Malpractice because of Ineffective Assistance of Counsel

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Published by tsulawjournal
Published in Volume 1, Number 1 of the Journal.
Published in Volume 1, Number 1 of the Journal.

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Published by: tsulawjournal on Apr 10, 2011
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103
PADILLA v. KENTUCKY: KEEPING UP WITH SOCIETALCHANGES –U.S. IMMIGRATION LAW PROPOSALS FOR LEGALPROFESSIONALS IN AN EFFORT TO AVOID LEGALMALPRACTICE BECAUSE OF INEFFECTIVE ASSISTANCEOF COUNSEL
Nelda V. Trevino*I. INTRODUCTIONThis legal scholarly writing is illustrative of a combination of two legal pedagogic templates: a casenote and an article. It can beclassified as a casenote because it analyzes
Padilla v. Kentucky
,
1
arecent U.S. Supreme Court decision intimately tied to immigrationlaw and proper Sixth Amendment rights afforded to non-citizens.
2
 
*
 
I would like to express my most sincere gratitude to all those who gave theirassistance and support in completion of this paper. I want to thank ProfessorRebecca Stewart for her guidance, advice and encouragement. I would also like tothank Professor Imran B. Mirza, for it was his enthusiasm and passion forimmigration law that inspired and motivated me to write this paper. Also, a specialthank you to the counsel mentioned from south Texas (Rio Grande Valley region)for their invaluable time and interviews. Finally, I would like to thank my parentsfor their encouragement and faith in my pursuit of the study of law, and, above all,God – for His guidance, mercy and unfailing love.
1
Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
Onthe other hand, this writing can also be described as an articlebecause, with
Padilla
standing as its basis and foundation, it offersnew proposals and ideas in an effort to ameliorate the transforming,ever-changing and cumbersome immigration law practice of the U.S.
2
Adonia R. Simpson,
Judicial Recommendations Against Removal: A Solution tothe Problem of Deportation for Statutory Rape
, 35 N
EW
E
NG
.
 
J.
ON
C
RIM
&
 
C
IV
.
 
C
ONFINEMENT
489, 489-90 (2009) (“Non[-]citizens include immigrants who arelawful permanent residents (LPRs) and undocumented persons, as well as thosetemporarily in the United states for a fixed period of time, such as business visitors,tourists, students and temporary workers.” ).
 
104
Current immigration law
3
dictates that deportation
4
is themandatory result of many criminal convictions, including minorcrimes
5
. An estimated 150,000 non-citizens (i.e., immigrants) will bedeported by the end of next year because of convictions resulting inmandatory deportation.
6
 
3
Interview with Carlos Garcia, Attorney at Law, Law Offices of Raul García andAssociates, McAllen, Tex. (Jul. 16, 2010) (explaining that when a non-citizendefendant is criminalized, the legal process generally includes a charge, conviction(i.e., trial), and sentence; defendant then serves sentence and is subsequentlybrought before an immigration judge who determines deportation matters,specifically “unlawful” entry and/or legal “removal” proceedings; during thoseproceedings, the non-citizen defendant has no right to counsel);
see also
Abel v.U.S., 362 U.S. 217, 237 (1960) (illustrating that deportation proceedings are civilproceedings to which the constitutional protections applicable to criminalprosecutions do not apply).
4
See
Maureen A. Sweeney,
Fact or Fiction: The Legal Construction of Immigration Removal for Crimes
, 27 Y
ALE
J.
ON
R
EG
. 47, 51 (Winter 2010) (“Tensof thousands of individuals are removed from crimes each year, many after enteringguilty pleas without any knowledge that their plea would lead directly to theirremoval and permanent banishment from the United States, with no possibility fordeviation, equity or mercy.”).
5
E.g.,
Brief for Asian American Justice Center, et. al. as Amici Curiae SupportingPetitioner, Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (No. 09-60),(discussing the deportation case of Jerry Lemaine: Lemaine, a legal permanentresident, was caught with one marijuana cigarette, and pursuant to the advice of alegal aid lawyer, plead guilty. Under state statutes, the penalty was only a $100fine; however, his guilty plea led to a sentence of three years behind bars. Lemaineis currently battling deportation to Haiti - a country he left at age three);
E.g.
, BryanLonegan,
American Diaspora: The Deportation of Lawful Residents from theUnited States and the Destruction of their Families
, 32 N.Y.
 
U.
 
R
EV
.
 
L.
 
&
 
S
OC
.
 
C
HANGE
55, 55-56 (2007) (illustrating the deportation case of Hemnauth Mohabir, alawful permanent resident, held by immigration authorities at an airport after legallyre-entering the country; he was detained because of a five-year old conviction forpossession of $5 worth of cocaine, for which he had been fined $250; Mohabirsubsequently spent two years in immigration detention and was then deported,leaving behind his U.S. citizen wife and son);
See, e.g.
, Minto v. Mukasey, 302 F.App’x 13 (2d Cir. 2008) (involving a noncriminal possession violation).
Most non-citizens, and their respective
6
Seth F. Wessler,
Quotas or Not, Deportation is a Wrecking Ball
, C
OLOR
L
INES
 (March 30, 2010, 1:59 PM),http://colorlines.com/archives/2010/03/new_deportation_numbers_and_lots_of_em
 
105
attorneys, fail to realize that once they plead guilty to a crime (whichis usually done in an attempt to secure a minimum punishment), theyunknowingly initiate their own deportation proceedings.
7
Mandatory deportation has not been viewed by the U.S. courtsas punishment and is therefore classified as a civil matter, 
8
eventhough non-citizens are charged with criminal matters and thensubsequently deported because of their criminal act(s).
9
Because of such view, many courts have deemed immigration consequences,such as deportation, to be a collateral consequence rather than a directconsequence, and have thus held “that the failure to advise non-citizen criminal defendants of possible deportation consequences doesnot constitute ineffective assistance of counsel.”
As a result, beforethe Supreme Court rendered its 2010 decision in
Padilla
, mostcourts
 
pty_words.html;
see
8 U.S.C. § 1227 (2002) (also referred to as § 237, which setsout language for classes of deportable aliens).
7
 
See
Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (“Padilla relied on hiscounsel’s erroneous advice when he pleaded guilty to the drug charges that madehis deportation virtually mandatory.”); s
ee also
8 U.S.C. § 1227 (2002) (alsoreferred to as § 237, which sets out language for classes of deportable aliens).
8
 
See Padilla
, 130 S. Ct. at 1476.
9
 
See
Sweeney,
supra
note 4, at 54 (“[C]ourts have generally relied on thecharacterization of deportation as a remedial sanction and have also virtuallyuniversally held that deportation is a collateral consequence of a conviction; forthese reasons, a criminal defendant’s constitutional protections do not attach toproceedings relating to the immigration consequences of a conviction.”).
10
Lindsay VanGilder,
Ineffective Assistance of Counsel Under People v. Pozo:Advising Non-Citizen Criminal Defendants of Possible Immigration Consequencesin Criminal Plea Agreements
, 80 U.
 
C
OLO
.
 
L.
 
R
EV
. 793, 793 (Summer 2009);
seealso
Sweeney,
supra
note 4 at 54 (explaining that immigrants are not affordedconstitutional protections during deportation proceedings because courts viewdeportation as a remedial sanction).
held that defense counsel who failed to advise and inform
11
Commonwealth v. Furtado, 170 S.W.3d 384, 386 (Ky. 2005) (holding thatcollateral consequences are outside the scope of representation required by the SixthAmendment); Meaton v. United States, 328 F.2d 379, 381 (5th Cir. 1964) (holdingthat refusal of the court to grant leave for withdrawal of a plea of guilty due toappellant’s failure to understand the collateral effects was not abuse of discretion);United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (“A collateral

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