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The Role of the U.S. Constitution and Immigrant's Rights: Removal of Remedies and the Admission of a Sixth Amendment Right to Counsel

The Role of the U.S. Constitution and Immigrant's Rights: Removal of Remedies and the Admission of a Sixth Amendment Right to Counsel

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Published by tsulawjournal
Published in Volume 2, Number 1 of the Journal.
Published in Volume 2, Number 1 of the Journal.

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Published by: tsulawjournal on Apr 09, 2012
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57
THE ROLE OF THE U.S. CONSTITUTION ANDIMMIGRANTS' RIGHTS:REMOVAL OF REMEDIES AND THE ADMISSION OF ASIXTH AMENDNENT RIGHT TO COUNSEL
Steven L. Walden
 I.
 
I
 NTRODUCTION
 
 A. The Issue: Competent Counsel for the Noncitizen Defendant 
For almost 100 years, Congress has expanded the array of deportable offenses, while simultaneously removing almost all formsof relief for noncitizens.
1
Today, a noncitizen is automaticallydeportable for an aggravated felony conviction, as defined byCongress.
2
However, the actual offense need not be aggravated, afelony, or a conviction for immigration purposes. For example, aTexas misdemeanor theft charge with twelve months deferredadjudication probation is an aggravated felony conviction for immigration purposes.
3
It is irrelevant that the actual offense was amisdemeanor, non-aggravated, and not a conviction.Furthermore, until
 Padilla v. Kentucky
,
4
criminal defenseattorneys had no legal duty to provide effective assistance of competent counsel to their noncitizen clients regarding the adverseimmigration consequences associated with a criminal plea.
5
In
 Padilla
, the Court recognized that it was responsible under the U.S.Constitution to ensure that noncitizens had a right to effective
 Editor-in-Chief 
, Thurgood Marshall Law Review (2011-2012), Juris DoctorateCandidate (2012), Thurgood Marshall School of Law; Masters of Science (2008),Tarleton State University. I would like to express gratitude to my wife, DebbieWalden, for her unwavering support and encouragement, and also to Professor Faith Joseph Jackson, Dean Fernando Colon and Judge Lupe Salinas for their advice and guidance throughout my law school career.
1
Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).
2
Immigration and Nationality Act of 1952, § 237(a)(2)(A)(iii) (codified at 8 U.S.C.§ 1227(a)(2)(A)(iii) (2008)).
3
Immigration and Nationality Act of 1952, §§ 101 (a)(43)(G), 101(a)(48) (codifiedat 8 U.S.C. §§ 1101(a)(43)(G), 1101(a)(48) (2011)).
4
 
 Padilla
, 130 S. Ct. 1473.
5
 
 Id.
at 1486.
 
 
58assistance of competent counsel, which included affirmative adviceregarding the risks of removal associated with a criminal plea.
6
  B. Statement of Significance: If Congress is Clear the Duty is EquallyClear 
The Court's decision in
 Padilla
will have a significant impacton a criminal defense attorney's counsel to noncitizen clients. TheCourt recognized that deportation is a "particularly severe penalty"that is so closely related to the prosecutorial process that removaladvice is within the boundary of the Sixth Amendment right toeffective assistance of competent counsel.
7
The Court determinedthat professional organizations, such as the American Bar Association, have established standards for defining effectiveassistance of competent counsel.
8
Within the context of immigration,the Court found that professional norms and standards require acriminal defense attorney to provide advice to a noncitizen clientregarding the immigration consequences associated with a criminal plea.
9
 The
 Padilla
Court held that the Sixth Amendment
10
requiresaffirmative effective assistance of competent counsel regardingimmigration consequences resulting from a criminal disposition whenthe law is "succinct and straightforward."
11
The Court clarified that both misadvise and silence about immigration consequences wouldestablish constitutionally deficient assistance of counsel.
12
As aresult, the Court held that, even if the immigration law is not clear and the consequences associated with a criminal plea are uncertain, acriminal defense attorney still has a duty to advise a noncitizen clientthat adverse immigration consequences are a possibility.
13
 Significantly, the Court further recommended that the defenseand prosecution make an “informed consideration” of the adverse
6
 
 Id.
 
7
 
 Id.
at 1481–82.
8
 
 Id.
at 1482.
9
 
 Id.
 
10
U.S.
 
C
ONST
. amend. VI (right of a person accused of a crime to have assistanceof counsel).
11
 
 Padilla
, 130 S. Ct. at 1483.
12
 
 Id.
at 1484.
13
 
 Id.
 
 
 
59immigration consequences during the plea bargaining process, inorder to reduce the probability of removal and to promote theinterests of justice.
14
 
C. Scope of Statement: From Congress's Plenary Powers to the Alien Deserves Some Advice
Part one of this article includes an introduction to the currentlegal situation imposed upon noncitizens, defined by an ever-expanding array of deportable offenses, with few forms of effectiverelief from removal. It also includes the evolution of the noncitizen’sright to effective assistance of counsel. Prior to
 Padilla
, a noncitizendid not have a Sixth Amendment
15
right to effective assistance of counsel associated with adverse immigration consequences resultingfrom a criminal plea. However, after 
 Padilla
, a criminal defenseattorney has a duty to warn a noncitizen client about the risks of deportation that may result from alternative dispositions in a criminalcase.
16
 Part two presents a historical overview of the development of immigration law in America and an accused person's right toassistance of counsel in a criminal proceeding. As the overviewindicates, it was not until 1917 that Congress began deportingnoncitizens for conduct committed after entering the United States.
17
 Since that time, Congress has continually expanded the definition of deportable offenses while eliminating almost all forms of relief,thereby leaving a noncitizen to face inevitable removal.
18
Thisreveals the noncitizen's critical dependence upon competent legaladvice in a criminal plea.
19
However, the overview also discussesthat a criminal defendant, whether citizen or noncitizen, was notentitled to effective assistance of competent counsel in all criminalcases, as a Sixth Amendment
20
right, until 1963.
21
Nevertheless, for the noncitizen, effective assistance to competent counsel did notinclude advice regarding adverse immigration consequences
14
 
 Id.
at 1486.
15
U.S.
 
C
ONST
. amend. VI.
16
 
 Padilla
, 130 S. Ct. 1473.
17
 
 Id 
. at 1479.
18
 
 Id.
at 1480.
19
 
 Id.
 
20
U.S.
 
C
ONST
. amend. VI.
21
Gideon v. Wainwright, 372 U.S. 335 (1963).

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