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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

Nelda V. Trevino*

I. INTRODUCTION This legal scholarly writing is illustrative of a combination of two legal pedagogic templates: a casenote and an article. It can be classified as a casenote because it analyzes Padilla v. Kentucky, 1 a recent U.S. Supreme Court decision intimately tied to immigration law and proper Sixth Amendment rights afforded to non-citizens. 2 On the other hand, this writing can also be described as an article because, with Padilla standing as its basis and foundation, it offers new proposals and ideas in an effort to ameliorate the transforming, ever-changing and cumbersome immigration law practice of the U.S.
*

I would like to express my most sincere gratitude to all those who gave their assistance and support in completion of this paper. I want to thank Professor Rebecca Stewart for her guidance, advice and encouragement. I would also like to thank Professor Imran B. Mirza, for it was his enthusiasm and passion for immigration law that inspired and motivated me to write this paper. Also, a special thank 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 parents for their encouragement and faith in my pursuit of the study of law, and, above all, God – for His guidance, mercy and unfailing love. Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

1 2

Adonia R. Simpson, Judicial Recommendations Against Removal: A Solution to the Problem of Deportation for Statutory Rape, 35 NEW ENG. J. ON CRIM & CIV. CONFINEMENT 489, 489-90 (2009) (“Non[-]citizens include immigrants who are lawful permanent residents (LPRs) and undocumented persons, as well as those temporarily in the United states for a fixed period of time, such as business visitors, tourists, students and temporary workers.” ).

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Current immigration law 3 dictates that deportation 4 is the mandatory result of many criminal convictions, including minor crimes 5. An estimated 150,000 non-citizens (i.e., immigrants) will be deported by the end of next year because of convictions resulting in mandatory deportation. 6 Most non-citizens, and their respective
3

Interview with Carlos Garcia, Attorney at Law, Law Offices of Raul García and Associates, McAllen, Tex. (Jul. 16, 2010) (explaining that when a non-citizen defendant is criminalized, the legal process generally includes a charge, conviction (i.e., trial), and sentence; defendant then serves sentence and is subsequently brought before an immigration judge who determines deportation matters, specifically “unlawful” entry and/or legal “removal” proceedings; during those proceedings, 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 civil proceedings to which the constitutional protections applicable to criminal prosecutions do not apply).

4

See Maureen A. Sweeney, Fact or Fiction: The Legal Construction of Immigration Removal for Crimes, 27 YALE J. ON REG. 47, 51 (Winter 2010) (“Tens of thousands of individuals are removed from crimes each year, many after entering guilty pleas without any knowledge that their plea would lead directly to their removal and permanent banishment from the United States, with no possibility for deviation, equity or mercy.”).

E.g., Brief for Asian American Justice Center, et. al. as Amici Curiae Supporting Petitioner, Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (No. 09-60), (discussing the deportation case of Jerry Lemaine: Lemaine, a legal permanent resident, was caught with one marijuana cigarette, and pursuant to the advice of a legal aid lawyer, plead guilty. Under state statutes, the penalty was only a $100 fine; however, his guilty plea led to a sentence of three years behind bars. Lemaine is currently battling deportation to Haiti - a country he left at age three); E.g., Bryan Lonegan, American Diaspora: The Deportation of Lawful Residents from the United States and the Destruction of their Families, 32 N.Y. U. REV. L. & SOC. CHANGE 55, 55-56 (2007) (illustrating the deportation case of Hemnauth Mohabir, a lawful permanent resident, held by immigration authorities at an airport after legally re-entering the country; he was detained because of a five-year old conviction for possession of $5 worth of cocaine, for which he had been fined $250; Mohabir subsequently 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).
6

5

Seth F. Wessler, Quotas or Not, Deportation is a Wrecking Ball, COLORLINES (March 30, 2010, 1:59 PM), http://colorlines.com/archives/2010/03/new_deportation_numbers_and_lots_of_em

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attorneys, fail to realize that once they plead guilty to a crime (which is usually done in an attempt to secure a minimum punishment), they unknowingly initiate their own deportation proceedings. 7 Mandatory deportation has not been viewed by the U.S. courts as punishment and is therefore classified as a civil matter, 8 even though non-citizens are charged with criminal matters and then subsequently 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 direct consequence, and have thus held “that the failure to advise noncitizen criminal defendants of possible deportation consequences does not constitute ineffective assistance of counsel.” 10 As a result, before the Supreme Court rendered its 2010 decision in Padilla, most courts 11 held that defense counsel who failed to advise and inform
pty_words.html; see 8 U.S.C. § 1227 (2002) (also referred to as § 237, which sets out language for classes of deportable aliens).
7

See Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (“Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory.”); see also 8 U.S.C. § 1227 (2002) (also referred 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 the characterization of deportation as a remedial sanction and have also virtually universally held that deportation is a collateral consequence of a conviction; for these reasons, a criminal defendant’s constitutional protections do not attach to proceedings relating to the immigration consequences of a conviction.”).

Lindsay VanGilder, Ineffective Assistance of Counsel Under People v. Pozo: Advising Non-Citizen Criminal Defendants of Possible Immigration Consequences in Criminal Plea Agreements, 80 U. COLO. L. REV. 793, 793 (Summer 2009); see also Sweeney, supra note 4 at 54 (explaining that immigrants are not afforded constitutional protections during deportation proceedings because courts view deportation as a remedial sanction).
11

10

Commonwealth v. Furtado, 170 S.W.3d 384, 386 (Ky. 2005) (holding that collateral consequences are outside the scope of representation required by the Sixth Amendment); Meaton v. United States, 328 F.2d 379, 381 (5th Cir. 1964) (holding that refusal of the court to grant leave for withdrawal of a plea of guilty due to appellant’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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clients of possible immigration consequences did not violate the Sixth Amendment’s right to effective assistance of counsel. 12 However, the Supreme Court’s recent treatment of this issue has resulted in a change to the legal landscape for non-citizens represented by counsel. 13 In Padilla, the petitioner, Jose Padilla, a lawful permanent resident, faced deportation proceedings after entering a guilty plea on drug related charges in the Hardin Circuit Court of Kentucky. 14 Padilla claimed that he pled guilty in reliance of his attorney’s advice that he did not have to worry about deportation consequences because he had lived in the U.S. for such a long period of time. 15 However, due to the set up of immigration laws and regulations in the U.S., Padilla unfortunately initiated his own mandatory deportation proceedings when he pled guilty. 16 Padilla’s plea agreement provided that he serve five years of his ten-year sentence, followed by a 5-year probationary period, after which his life as a lawful permanent resident in the U.S. would come to an end. 17 The petitioner appealed and alleged that his Sixth Amendment constitutional right was denied because of ineffective assistance of counsel, as “he would have
consequence is one that is not related to the length or nature of the sentence imposed on the basis of the plea. Applying this definition, we hold that potential deportation is a collateral consequence of a guilty plea.”).
12

See People v. Cozo, 746 P.2d 523 (Colo. 1987) (holding that, unlike most courts, criminal defense counsel may be required to investigate relevant immigration law and advise non-citizen clients of potential deportation consequences of guilty pleas to avoid facing ineffective assistance of counsel claims). Padilla, 130 S. Ct. at 1482 (“[A]dvice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.”). Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008). Padilla, 130 S. Ct. at 1476. See Id. at 1478. Padilla, 253 S.W.3d at 483.

13

14 15 16 17

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insisted on going to trial if he had not received incorrect advice from his attorney.” 18 The issue addressed by the U.S. Supreme Court was whether, under federal law, defense counsel had a duty to advise his non-citizen client of potential immigration consequences when pleading guilty to a crime. 19 The Court held that competent counsel should inform non-citizen clients of automatic deportation consequences. 20 Although the Court’s holding was ultimately correct, the court failed to advise and set out a definite and clear standard for guidance on how to remedy the problem of ineffective assistance of counsel in connection with U.S. immigration issues, specifically as to deportation consequences. Moreover, if the number of deportations continue to rise because of ineffective assistance of counsel, Congress may need to intervene once again to reinstate the former judicial recommendation against deportation mechanisms. Thus, U.S. immigration law remedies are necessary so that lawyers, whether having practiced law for years or days, can avoid legal malpractice because of ineffective assistance of counsel. An effective solution for any issue is one that starts at the root of the problem presented. The heart of Padilla revolves around effective assistance of counsel 21 -- as mandated and set out in the Sixth Amendment of the U.S. Constitution. 22 The Sixth Amendment states that the accused shall have the assistance of counsel for his defense 23 and the U.S. Supreme Court has held that “it had long been
18 19 20 21 22 23

Padilla, 130 S. Ct. at 1478. Id. Id. Padilla, 130 S. Ct. at 1473. U.S. CONST. amend. VI.

Id. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and pubic trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”).

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recognized that such right to counsel is the right to effective assistance of counsel.” 24 Therefore, in cases similar to Padilla (i.e., cases dealing with non-citizens charged with criminal convictions), a criminal defense attorney must inform the accused of possible immigration consequences for his or her assistance to be up to par with the standards set out in the Sixth Amendment. It is imperative that counsel has some basic knowledge of immigration law if he or she is to represent the non-citizen defendant in a criminal court effectively. Such knowledge includes, but is certainly not limited to, the fact that certain categories of crimes have different definitions and meanings under immigration law, 25 that pleading guilty to a crime may have irreparable deportation consequences, 26 and that immigration law has its own unique vocabulary terms. 27 The U.S. Supreme Court’s holding in Padilla is paramount because it will change the way non-citizens charged with crimes are

McMann v. Richardson, 397 U.S. 759, 771 (1970) (citing Reece v. Georgia, 350 U.S. 85, 90 (1955); Glasser v. United States, 315 U.S. 60, 69-70 (1942); Avery v. Alabama, 308 U.S. 444, 446 (1940); Powell v. Alabama, 287 U.S. 45, 57 (1932)). See Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000) (The court held that the non-citizen’s conviction for possession of drug paraphernalia under the Arizona Criminal Code was a conviction for a violation of a law relating to a controlled substance. Since the conviction fell into that category (i.e. controlled substance), pursuant to the Immigration and Nationality Act and Illegal Immigration Reform and Immigrant Responsibility Act of 1996, such terminology removed the court’s jurisdiction and the non-citizen’s due process and fundamental fairness arguments could not even be addressed, even though he was charged with a crime.); see also Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1276, 1277 (1996); see also 8 U.S.C. § 1182(c) (repealed 1996).
26 25

24

Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (citing INS v. St. Cyr, 533 U.S. 289, 296 (2001) (referring to the Attorney General’s authority to grant discretionary relief from deportation -- an authority that had been exercised to prevent the deportation of over 10,000 non-citizens during the 5-year period prior to 1996). See Rosenberg v. Fleuti, 374 U.S. 449, 451-53 (1963) (referring to the Court’s elaboration and definition of the term “entry” for immigration law purposes).

27

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treated procedurally 28 and will consequently raise the bar for criminal defense attorneys representing non-citizens in a court of law. In order to understand the outcome surrounding a case of first impression and its prevalent impact, it is important to understand the history behind the present. Thus, part two of this writing delineates a historical overview of immigration law in the U.S. and illustrates the connection and importance of immigration law relative to the Sixth Amendment’s right of effective assistance of counsel. Part three presents a case recitation of Padilla, including the facts and procedural history. Part four sets forth an analysis of the Court’s opinions (majority, concurring, and dissenting). Part five suggests some possible solutions and critiques that the Padilla holding might achieve. Finally, part six provides a brief summary of the main points set forth in this writing. II. HISTORICAL OVERVIEW History: “The Beginning is the Most Important Part of the Work” 29 In order to grasp a full understanding of the current intricate immigration laws in the U.S., one must first comprehend their history. History not only helps to inform us as to how the immigration laws were formulated, but also helps us to comprehend immigration law as it stands today. As the following cases demonstrate, immigration concerns arose many years ago and the progress towards equal procedural due process for non-citizens has moved at a glacial pace. Before 1875, there were no federal immigration laws in the U.S. 30 In fact, minimal and minute immigration regulations were
28

VanGilder, supra note 10, at 796 (“[B]ecause immigration consequences have often been deemed indirect collateral consequences of plea bargains, rather than ‘direct consequences,’ many courts have held that failure to advise a non-citizen criminal defendant of possible deportation consequences does not constitute ineffective assistance of counsel.”).

29

THE QUOTATIONS PAGE, http://www.quotationspage.com/quote/24207.html (last visited Mar. 15, 2011) (quoting Plato). Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1844 (December 1993).

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viewed only at the colonial and state levels. 31 Thereafter, a prohibition of convict immigration was set out in a federal statute restricting European immigration. 32 As a result, Congress passed the Act of Mar. 3, 1875, 33 a statute that barred “convicts and prostitutes from entering the country.” 34 Shortly thereafter, the courts reluctantly began to get involved because they felt that immigration issues fell onto the lap of Congress. 35 The first immigration case brought before the courts was Chae Chan Ping v. United States wherein a Chinese laborer who legally resided in the U.S. left the U.S. for a visit to China, but before his departure, obtained a certificate entitling him to return and re-enter the U.S. 36 However upon his return, the Chinese laborer was forbidden from entry on the sole ground that Congress approved a law during his absence that annulled any certificates entitling Chinese laborers to re-enter the U.S. 37 In Chae Chan Ping, the court held that “[t]he government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the
31 32 33

Id. Id.

Id. (stating that the Act of Mar. 3, 1875, excluded persons from legally entering into the U.S. who were sentenced and convicted in their own countries of felonious crimes).
34

Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (referring to Act of Mar. 3, 1875).

Fong Yue Ting v. United States, 149 U.S. 698, 713-14 (1893) (“The power of Congress, therefore, to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through [its] executive officers . . . [Therefore][,] Congress, having the right, as it may see fit, to expel aliens of a particular class, or to permit them to remain, has undoubtedly the right to provide a system of registration and identification of the members of that class within the country, and to take all proper means to carry out the system which it provides.”).
36 37

35

Chae Chan Ping v. United States, 130 U.S. 581, 581 (1889). Id.

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occasion on which the powers shall be called forth . . . .” 38 Essentially, the court’s view was that the government, pursuant to the sovereign powers delegated by the U.S. Constitution, 39 could exclude whomever it deemed necessary for the security and protection of U.S. borders at any time it determined such security was at risk or reasonably at risk, so long as, when in the judgment of the government, the interest of the country required it. 40 Therefore, in the era of Chae Chan Ping, non-citizens had few rights and limited constitutional protections, even if they were at some point approved to be on U.S. soil. As a result, once a non-citizen left the country, the government had the power to prohibit him or her from legal entry back into the U.S. A couple of years later, the Court declared that deportation proceedings for non-citizens found inside the U.S. were civil matters. 41 It is evident that, at that time, the Court did not want deportation proceedings viewed as criminal matters because noncitizens would then be entitled to U.S. constitutional protections, 42 specifically those found in the Fourth, Fifth, Sixth, and Eighth Amendments. The court held that an order of deportation is “not [a] punishment for crime [but is] a method of enforcing the return to [a non-citizen’s] own country . . . .” 43 The court further reasoned that the non-citizen “has not . . . been deprived of life, liberty, or property without due process of law; and the provisions of the Constitution securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no
38 39 40 41

Id. at 606. Id. Id. at 606-07.

Fong Yue Ting v. United States, 149 U.S. 698, 728-29 (1893); see also Simpson, supra note 2, at 490 (“[D]eportation is not considered punishment, but is merely an administrative action determining a noncitizen’s right to remain in the United States.”). Fong Yue Ting, 149 U.S. at 730. Id.

42 43

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application” 44 since the issue is civil and not criminal. After the decision rendered in Fong Yue Ting, Congress, in its exercise of plenary power, refrained from giving non-citizens procedural due process rights 45 because such “proceeding before a United States judge . . . is in no proper sense a trial and sentence for a crime or offense.” 46 This view was held by the courts even though the noncitizens in question were residing inside U.S. perimeters for several years, had established their U.S. domiciles, and/or had cemented their families in the U.S. 47 For those non-citizens that had developed such extensive ties in the U.S., spending the rest of their lives in exile is a reality “often difficult to reconcile with the view that deportation is not punishment.” 48 However, in 1896, the judiciary was faced with an immigration issue that questioned its previous holding -- that noncitizens had no constitutionally afforded procedural rights when faced with charges in a U.S. court of law. 49 In Wong Wing v. United States, the issue before the court was whether Congress could promote its policy “[t]hat any such Chinese person or person of Chinese descent, convicted and adjudged to be not lawfully entitled to be and remain in the United States, shall be imprisoned at hard labor for a period of not exceeding one year, and thereafter removed from the United States . . .” without a trial by jury. 50 In Wong Wing, the plaintiffs were of Chinese descent and were found unlawfully inside the U.S. 51 The
44 45

Id.

See 8 U.S.C. § 1229a(b)(4)(A) (“In proceedings under this section, . . . the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings.”). 46 Fong Yue Ting, 149 U.S. at 730.
47

See Shaughnessy v. Mezei, 345 U.S. 206, 206-07 (1953); Padilla v. Kentucky, 130 S. Ct. 1473, 1475 (2010); Chae Chan Ping v. United States, 130 U.S. 581, 581 (1889); Chew v. Colding, 344 U.S. 590, 592-95 (1953). Simpson, supra note 2, at 491. Wong Wing v. United States, 163 U.S. 228, 235 (1896). Id. Id. at 229.

48 49 50 51

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plaintiffs’ mere presence in the U.S. was the criminal offense, so they were imprisoned and sentenced to “hard labor” for sixty days, and after serving those sentences, were then ordered to be deported to China. 52 However, for the first time in the nineteenth century, the U.S. Supreme Court reversed the decision and ultimately reasoned that “even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.” 53 After the decision was rendered in Wong Wing, the judiciary began to show a sense of equality towards non-citizens by affording them some forms of procedural due process rights. Background and Development: Congress Shows that Power Has No Limits Just as the wheels of equality began to progress for noncitizens found in the U.S., Congress passed the Immigration and Nationality Act of 1917, which brought about “radical changes” for immigration law. 54 To begin, “Congress made classes of non-citizens deportable based on conduct committed on American soil.” 55 The Act also “authorized the deportation of any alien sentenced to imprisonment for a term of one year or more” if such conviction involved a crime of moral turpitude 56 and was “committed within five years after entry to the U.S.” 57 Moreover, Section 19 of the Act
52 53 54 55 56

Id. Id. at 238. Padilla v. Kentucky, 130 S. Ct. 1473, 1478-79 (2010). Id. at 1479.

Id. at 1479 (noting that Congress has failed to define with specificity the term “moral turpitude”); see also Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982) (citing Forbes v. Brownell, 149 F.Supp. 848, 849 (D.C.1957) (“Whether a crime involves moral turpitude depends upon the inherent nature of the crime, as defined in the statute concerned . . .”); see also Simpson, supra note 2, at 492 (“What constitutes a crime involving moral turpitude is unclear, and Congress provides little guidance. Defining a crime of moral turpitude entails more of a moral or ethical conclusion.”).
57

Padilla, 130 S. Ct. at 1479.

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rendered deportable any non-citizen who committed “two or more crimes of moral turpitude at any time after entry.” 58 Congress’ failure to statutorily define “moral turpitude” affected the status of noncitizens because it rendered most non-citizens charged with crimes deportable or inadmissible. 59 This was problematic because the classification of such crimes became “judgment calls regarding the morality, not the legality of criminal behavior.” 60 This led to a lack of uniformity regarding exactly which crimes were considered crimes of moral turpitude. 61 Thus, it is evident that during that time there was an increased criminalization of immigration law that affected the outcome for non-citizens charged with crimes. 62 Ironically, this Act also minimized the risk of unjust deportation because it allowed judges to make recommendations on deportation proceedings. This was also referred to as Judicial Recommendation Against Deportation (hereinafter, “JRAD”). 63 In JRAD proceedings, sentencing judges in both state and federal prosecutions had the power to make a recommendation during the sentencing phase, or within thirty days thereafter, that “such alien shall not be deported.” 64 Once a recommendation was made by the sentencing court, “[t]hose in charge of the deportation process,
58 59 60 61 62

Id. Simpson, supra note 2 at 500. Id. at 501. Id.

Simpson, supra note 2, at 500 (“In 1917, Congress passed legislation that made the conviction of crimes involving moral turpitude both a ground for exclusion and a ground for deportation from the United States.”).
63

Padilla, 130 S. Ct. at 1479; see also Haller v. Esperdy, 397 F.2d 211, 212 (1968) (stating that 8 U.S.C.A. § 1251(b)(2) offered “sentencing judge a chance to ameliorate the harsh sanction of deportation . . . .”). Padilla, 130 S. Ct. at 1479; see also Simpson, supra note 2, at 502 (“JRAD allowed noncitizens to request that the judge of the criminal court issue a binding recommendation that the criminal conviction be construed by an immigration judge as not triggering removal from the United States.”).

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[including] the immigration judge, the INS [and] the Attorney General, [were] . . . simply not allowed to use the conviction as a basis for deportation.” 65 Such judicial recommendation helped prevent automatic deportation because even if a non-citizen was charged with a deportable offense, the presiding judge retained discretion to ameliorate unjust results. 66 JRAD helped non-citizens remain in the U.S., since “there was no such creature as an automatically deportable offense.” 67 Thereafter, Congress passed the Immigration and Nationality Act of 1952 that replaced and roughly paralleled the 1917 Act by “granting the Attorney General broad discretion to admit excludable aliens”, 68 provided that the non-citizen had established his residency in the United States for at least seven years. 69 Section 212(c) of the 1952 Act allowed non-citizens to apply for discretionary waivers of deportation, 70 as it afforded the courts the authority to weigh the equities of the case when rendering decisions to grant deportation. 71 Such extension of deportation relief had great practical importance for non-citizens facing deportation because immigration law broadly defined deportable offenses. 72 Accordingly, for non-citizens charged
65 66 67 68 69 70

Janvier v. United States, 793 F.2d 449, 452 (2d Cir. 1986). Id. Padilla, 130 S. Ct. at 1479. INS v. St. Cyr, 533 U.S. 289, 294-95 (2001). See 8 U.S.C. §1182(c) (repealed 1996).

St. Cyr, 533 U.S. at 295 (“Like § 3 of the 1917 Act, § 212(c) was literally applicable only to exclusion proceedings, but it too has been interpreted by the Board of Immigration Appeals (BIA) to authorize any permanent resident alien with ‘a lawful unrelinquished domicile of seven consecutive years’ to apply for a discretionary waiver from deportation.”).
71

Sweeney, supra note 4, at 61 (“[I]mmigration judge was to balance the positive and adverse factors and decide on the record as a whole whether the applicant was deserving of a positive exercise of discretion.”). St. Cyr, 533 U.S. at 295 (citing that pursuant to 8 U.S.C. § 1227, aliens are deportable upon conviction of two or more crimes of moral turpitude or for one

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with criminal offenses who wished to continue to legally reside in this country, Section 212(c) relief was vital to their stay. 73 “If relief [was] granted, the deportation proceeding [was] terminated and the alien remain[ed] a permanent resident.” 74 Moreover, in 1953, the Supreme Court held that lawful permanent residents 75 were afforded procedural due process rights. 76 In Kwong Hai Chew v. Colding, the plaintiff was a lawful permanent resident admitted into the U.S as of January 10, 1945. 77 He was married to a Native American, resided in New York, served as a United States Merchant Marine during World War II, and in November 1950, signed articles of employment after being screened for employment by the U.S. Coast Guard. 78 He was detained while on an American merchant vessel in San Francisco. 79 The vessel he was

such crime if committed within five years of entry and resulted in a jail term of at least one year).
73 74 75

Id. at 296. Id. at 295.

Kwong Hai Chew v. Colding, 344 U.S. 590, 591-92 (“[A] lawful permanent resident of the United States . . . is an alien continuously residing and physically present therein … .”); see also U.S. CITIZENSHIP AND IMMIGR. SERVICES, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6 d1a/?vgnextoid=070695c4f635f010VgnVCM1000000ecd190aRCRD&vgnextchan nel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD (last visited March 13, 2011) (“A lawful permanent resident is as any person not a citizen of the United States who is residing the in the U.S. under legally recognized and lawfully recorded permanent residence as an immigrant. Also referred to as Permanent Resident Alien, Resident Alien Permit Holder, and Green Card Holder."). Kwong Hai Chew, 344 U.S. at 596-97 (“It is well established that if an alien is a lawful permanent resident of the United States and remains physically present there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property without due process of law.”). Id. at 592-95. Id. Id.

76

77 78 79

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excluded from was to be his first voyage with the U.S. Coast Guard. 80 Mr. Chew committed no crime and his detention was based on “information of a confidential nature.” 81 ”The immigration inspector ordered him ‘temporarily excluded’, . . . as an alien whose entry was deemed prejudicial to the public interest.” 82 The plaintiff petitioned such detention and the Court was asked to determine if a detention, without notice of any charge against him and without opportunity to be heard, was legally valid. 83 The wheels of equality progressed once again when the Court held that lawful permanent residents “from a constitutional point of view were entitled to due process.” 84 The court reasoned that lawful permanent residents were protected under the Fifth Amendment, that they could not be detained without being informed of the charges against them, and that they must be afforded a hearing sufficient to satisfy due process requirements. 85 Therefore, the decision in Kwong Hai Chew illustrates that the courts viewed lawful permanent residents as citizens with constitutional due process rights. 86 Equality was illustrated as lawful permanent residents became entitled to the opportunity to be heard before a judge once charged with a crime. 87 But alas, the slight progression of equality for non-citizens facing criminal procedures came to a halt in 1996 when Congress passed the Antiterrorism and Effective Death Penalty Act
80 81 82 83 84 85 86 87

Id. Id. Id. at 594-95. Id. Id. at 598. Id. at 602-03. Id. at 598-99.

Id. at 600-01 (“From a constitutional point of view, [an alien] is entitled to due process without regard to whether or not, for immigration purposes, he is to be treated as an entrant alien . . .[;] [h]is status as a person within the meaning and protection of the Fifth Amendment cannot be capriciously taken from him.”).

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(hereinafter, “AEDPA”) 88 and the Illegal Immigration Reform and Immigration Responsibility Act (hereinafter, “IIRIRA”) 89. 90 These acts stiffened immigration laws for aggravated felonies by prospectively eliminating the Section 212(c) relief previously afforded 91 and by expanding the class of crimes that would fall under aggravated felonies. 92 By the passage of these acts, Congress eliminated the Attorney General’s authority to grant discretionary relief from deportation, an authority that, as previously mentioned, had been exercised to prevent deportation. 93 In general, if a noncitizen committed a removable offense after the 1996 effective date, removal proceedings were practically inevitable. 94 The “cancellation
See Simpson, supra note 2, at 506. The passage of the AEDPA was actually rooted in an act of domestic terrorism, the Oklahoma City Bombings of 1995. This Act greatly expanded the class of crimes known as aggravated felonies, which affected immigration deportation concerns. Senator Kennedy commented during the wake of the passage of the AEDPA that such amendment “virtually eliminates the Attorney General’s flexibility to grant discretionary relief from deportation for long-time permanent residents convicted of lesser crimes . . . [t]hey could live here productively for thirty years and have an American wife and children. But for them, it is one strike and you are out.” See Simpson, supra note 2, at 504. IIRIRA lowered the requisite term of imprisonment for “crimes of violence” from five years to one year. Accordingly, this allowed for many crimes that would be characterized as misdemeanors to qualify as a crime of violence if a possible sentence of imprisonment for one year could be imposed. Another harsh consequence of IIRIRA is that its amendments are implemented retroactively, making a person deportable regardless of when the crime occurred. See also Lonegan, supra note 5, at 60 (stating that IIRIRA eliminated § 212(c) relief and replaced it with a new form of relief called “cancellation of removal”).
90 91 92 93 89 88

Sweeney, supra note 4, at 65. Id. Lonegan, supra note 5, at 60.

Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (citing INS v. St. Cyr, 533 U.S. 289, 295-96 (2001)). Id.

94

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of removal statute” espoused by IIRIRA created two additional statutory bars to prevent lawful permanent residents from seeking any form of deportation discretion, including the commission of an aggravated felony and the commission of minor offenses within seven years of arrival. 95 The clear lack of judicial flexibility back-tracked non-citizens’ rights and it appeared that non-citizens were back to the judicial times of Chae Chan Ping and Fong Yue Ting. The aforementioned cases illustrate that the U.S. Congress historically kept going back-and-forth on its immigration policies. The holdings ranged from the enforcement of harsh policies to lenient guidelines, and from judicial discretion on deportation to mandatory deportation. At its commencement, immigration law was very narrow and straight-forward. Earlier cases proved such by concluding that the U.S. could exclude and deport non-citizens at will. Thereafter, the history of the immigration timeline evidenced a drastic and dramatic evolution. Once AEDPA and IIRIRA were passed in 1996, it appeared that the movement towards equal rights for immigrants came to a halt. The courts deported individuals regardless of familial ties, U.S. based employment, and/or their length of stay in the U.S. 96 Tens of thousands of non-citizen criminal defendants have been removed from the U.S. since then. 97 For example, in 1986 alone, the annual rate at which the U.S. deported non-citizens because of criminal convictions rose from 1,978 to over 88,000 in 2005. 98 History allows one to conclude that the “United States now has a twotiered system of criminal justice, in which lawful permanent residents

95 96

Lonegan, supra note 5, at 61.

Sweeney, supra note 4, at 49 (“Immigration authorities deported tens of thousands of lawful permanent residents . . . [and] for those with spouses and children in this country, the consequences of removal were far more severe than the terms of criminal sentences. However, courts have consistently held that removal is not punishment for crime but is instead a remedial civil sanction and a collateral, rather than a direct, consequence of a conviction.”). VanGilder, supra note 10, at 793. Lonegan, supra note 5, at 57.

97 98

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are punished far more harshly than their citizen counterparts for even the most trivial offenses.” 99 Nexus between Immigration Law and the Sixth Amendment’s Right to Counsel Immigration concerns were brought to the courts’ attention in 1889 when the courts decided Chae Chan Ping. To date, immigration concerns continue in the courts as, most recently, the U.S. Supreme Court handed down a monumental decision in Padilla, which granted immigrants the right to effective assistance of counsel. 100 As a result, counsel must now inform clients of potential immigration consequences. Historically, courts held that removal proceedings were regarded as wholly civil in nature and thus deportations were not viewed as punishment or a form of criminal sanctions. 101 As a result, one could conclude that former immigration law did not consider serving a criminal sentence and deportation to be a form of double jeopardy. However, the court in Padilla recognized that deportation is in fact a severe penalty and is “nevertheless intimately related to the criminal process.” 102 Before Padilla, a desperate need for effective assistance of counsel existed due to the legislation that was in place for non-citizens convicted of crimes. 103 Therefore, the

99

Id. at 57-58.

100

Padilla v. Kentucky, 130 S. Ct. 1473, 1487 (2010) (“It is our responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the mercies of incompetent counsel.”); see also VanGilder, supra note 10, at 838 (“Adequate advice in a criminal proceeding may make a cognizable difference in deportation proceedings by making non-citizens who are facing removal better equipped to face the immigration judges who will seal their fate. Requiring defense counsel to advise a non-citizen criminal defendant, like Mr. Padilla, of the immigration consequences of a guilty plea is an important step toward protecting the defendant's Sixth Amendment right to effective assistance of counsel.”).

101 102

Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010). Id.

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decision handed down in Padilla helped to prove that deportation is in fact such a dire consequence that more protections are necessary, 104 specifically the right to effective assistance of counsel as set out in the Sixth Amendment of the U.S. Constitution. 105 III. CASE RECITATION Background and Procedural History Petitioner Jose Padilla, a native of Honduras, became a lawful permanent resident of the U.S. over forty years ago. 106 “Padilla served this nation with honor as a member of the U.S. Armed Forces during the Vietnam War.” 107 Padilla contended that he lived with his family in California. 108 In September 2001, Padilla, a licensed commercial truck driver, was arrested in Kentucky for charges of operating a tractor/trailer without a weight and distance tax number and for transporting marijuana. 109 He was subsequently indicted for the same offense in October 2001. 110 Pursuant to the laws of the state of Kentucky, the transportation charge rendered an indictment for
103

Id. at 1480 (“[C]hanges to our immigration law have dramatically raised the stakes of a non-citizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part -- indeed, sometimes the most important part -- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”). Id.

104 105

U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall have the Assistance of Counsel for his defense.”). Padilla, 130 S. Ct. at 1477. Id.

106 107 108

Brief of Petitioner at 8, Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08651). Id. Id.

109 110

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three charges: 1) trafficking of the drug, 2) possession of the drug; and 3) possession of drug paraphernalia. 111 Initially, Padilla pled not guilty and was released on bond. 112 Subsequently, Padilla moved, under the advice of his counsel, to enter a guilty plea on the drugrelated charges in exchange for a dismissal of the non-drug related charge and a total sentence of ten yearss. 113 On October 4, 2002, the trial court entered the judgment convicting Padilla of the drug-related charges. 114 After entering his plea, Padilla was faced with deportation from the U.S. 115 On August 18, 2004, Padilla filed a pro se motion in the Hardin County Circuit Court for post-conviction relief, alleging ineffective assistance of counsel. 116 Specifically, Padilla noted that his counsel was required to investigate possible deportation consequences and that his counsel’s wrongful advice on the deportation consequences of his plea without investigation of those consequences constituted ineffective assistance of counsel. 117 Padilla claimed he was misadvised by his attorney on the deportation consequences of his plea. 118 Padilla told the Court that when he asked his court appointed attorney about his immigration status, his attorney’s response was that he should not worry about it because he had lived in the U.S. long enough. 119 Thus, Padilla relied on his

111 112 113

Id. Id.

Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008) (“the plea agreement provided that Padilla would serve five years of his ten year sentence and would be sentenced to probation for the remaining five years.”). Id. Padilla v. Kentucky, 130 S. Ct. 1473, 1477 (2010). Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008). Brief of Petitioner, supra note 107 at 11. Id.

114 115 116 117 118

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counsel’s erroneous advice when he pled guilty to the drug charge that made his deportation virtually mandatory. 120 He also told the Court that he would have insisted on going to trial had he not received faulty and misleading advice from his attorney. 121 The trial court subsequently denied Padilla’s motion, holding that he did not have to be educated on all possible consequences of his guilty plea. 122 Padilla then appealed to the Kentucky Court of Appeals, which reversed and remanded the trial court’s decision, holding that “although collateral consequences do not have to be advised, an affirmative act of gross misadvice relating to collateral matters can justify post-conviction relief.” 123 The Commonwealth of Kentucky then appealed the ruling to the Kentucky Supreme Court. 124 The Kentucky Supreme Court reversed the appellate decision, holding that relief was denied to the appellee, Padilla, because “the Sixth Amendment’s guarantee of effective assistance of counsel did not protect a criminal defendant from erroneous advice about deportation, as it was merely a collateral consequence of conviction.” 125 Certiorari was then granted by the U.S. Supreme Court to decide whether “Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.” 126

119

Id. at 10-11 (referring to the language under 8 U.S.C. § 1101(a)(43)(B),and 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i), Mr. Padilla’s felony drug conviction was a deportable crime because it constituted an aggravated felony as delineated in the statutes). Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010). Id. Commonwealth v. Padilla, 253 S.W.3d 482, 482 (Ky. 2008). Id. at 482-83. Padilla, 130 S. Ct. at 1473. Padilla, 130 S. Ct. at 1478. Id.

120 121 122 123 124 125 126

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IV. ANALYSIS Court’s Analysis 1. Majority Opinion: Taking a Stand The Court in Padilla held that counsel engaged in deficient performance by failing to advise the defendant that his guilty plea made him subject to automatic deportation and that the defendant’s claim was subject to the Strickland ineffective assistance test, 127 not only to the extent that he alleged affirmative misadvice, but also to the extent that he alleged omissions by counsel. 128 The Court also distinguished between direct and collateral consequences as they pertained to the “unique nature of deportation.” 129 First, the Court stated that to address the ineffective assistance of counsel claim, the Strickland test applied. 130 To determine whether counsel’s performance was in fact deficient (the first prong of the Strickland test), the Court addressed whether counsel’s representations fell below an objective standard of care. 131 The Court looked to the prevailing professional norms that dealt with the “intersection of modern criminal prosecutions and immigration law.” 132 It found that the “weight of such professional norms support the view that counsel must advise [his or] her client regarding the deportation risk” 133 because deportation is recognized as a harsh
127

See Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating that to prevail on a claim of ineffective assistance of counsel relative to a guilty plea, petitioner must demonstrate that: (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced his defense). Padilla, 130 S. Ct. at 1473 (majority opinion). Id. at 1476. Id. Id. Id. at 1482. Padilla, 130 S. Ct. at 1482 (majority opinion).

128 129 130 131 132 133

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penalty. Moreover, when “the terms of the relevant immigration statute are succinct, clear and explicit in defining the removal consequence” for a conviction, and a simple reading of the immigration statute could have easily been determined, the duty to give such correct advice is equally clear. 134 Not surprisingly, the Court reasoned that, “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” 135 Thus, Padilla’s attorney failed to provide effective assistance of counsel, thereby depriving Padilla of his constitutional right to effective assistance of counsel. Since the petitioner sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland, the Court left the second prong for consideration by the Kentucky courts. 136 Moreover, the Court made it clear that it was stepping in to make a decision because a trend towards non-citizens being convicted of crimes with a lack of procedural due process rights had become evident. 137 Before the passage of several legislative acts, non-citizens had protections, whereas now, there are virtually none. 138 Specifically, the Court defended its holding by proclaiming that, “[w]hile once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate
134 135 136 137

Id. at 1483. Id. at 1482. Id. at 1483-84.

Id. at 1476; see also VanGilder, supra note 10, at 794 (“In 2005 alone, 40,018 aliens were removed from the United States for criminal violations. That number accounts for approximately nineteen percent of the 208,521 total removals in 2005[,] but does not include aliens who are criminals and are removed under a different administrative reason for the convenience of the government. The Department of Homeland Security estimates that it removed 89,406 total criminal aliens from the United States in 2005, which accounts for forty-three percent of the total removals in 2005.”).

138

Padilla, 130 S. Ct. at 1476 (majority opinion).

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deportation’s harsh consequences.” 139 Accordingly, the decision rendered reflects the Court’s awareness of a need to intervene because of the injustice towards non-citizens. The Court espoused that it is “responsibl[e], under the Constitution, to ensure that no criminal defendant – whether a citizen or not – is left to the ‘mercies of incompetent counsel.’” 140 The Court also advised that its decision did not necessarily recommend that immigration law advice is required in every instance, especially where the law is not succinct and straightforward. 141 It pointed out that only where “the terms of the relevant immigration statute are succinct, clear and explicit in defining the removal consequence for . . . conviction,” is adequate advice necessary. 142 The court concluded that in Padilla’s case, the deportation consequence of his plea was clear from a mere reading of the relevant immigration law statute. 143 The Court also asserted that deportation, although civil in nature, is a severe penalty intimately related to the criminal process and that, due to the constant changes in immigration law, non-citizen defendants facing a risk of deportation for a particular offense find it even more difficult to “divorce the penalty from the conviction in the deportation context.” 144 Accordingly, removal proceedings make it uniquely difficult to classify deportation as either a direct or collateral consequence. 145 Due to the intricacy between deportation and
139 140 141 142 143

Id. Id. at 1486. Id. at 1483. Id.

Padilla, 130 S. Ct. at 1483 (majority opinion) (noting that 8 U.S.C. § 1227(a)(2)(B)(i) clearly states that an alien who at any time after admission into the U.S. has been convicted of a violation of any law or regulation of a State relating to a controlled substance, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable). Id. at 1482. Id. at 1476.

144 145

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criminal law proceedings, the Sixth Amendment right to counsel for non-citizens facing criminal charges is extremely important because deportation is the equivalent of banishment or exile. 146 This exemplifies the critical need for counsel to inform non-citizen client(s) of the risk of deportation when entering a guilty plea. 147 In a brief on behalf of the United States as Amicus Curiae, the Solicitor General argued that Padilla’s claim should only be valid if he was given affirmative misadvice. 148 The Court countered this argument by explaining that a holding limited to affirmative misadvice would not help defendants being represented by counsel because it would encourage criminal defense attorneys to remain silent on important legal matters, “even when answers are readily available.” 149 In essence, the Court summarized that “there is no relative difference between an act of commission and an act of omission in this context.” 150 2. Concurring Opinion: The Complexity Remains In the concurring opinion, Justice Alito agreed with the majority that criminal defense counsel must provide effective assistance to their clients and not mislead them on deportation consequences. 151 Justice Alito also opined that immigration law is too complex and difficult to understand for criminal defense attorneys not specialized in immigration law. 152 Because of immigration law complexities, however, he disagreed with the majority that a criminal defense attorney must attempt to explain the possible immigration

146 147 148 149 150 151 152

Id. at 1484. Id. Padilla, 130 S. Ct. at 1484 (majority opinion). Id. Id. Id. at 1487 (Alito, J., concurring). Id.

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consequences that might arise from a criminal conviction. 153 The concurrence also reasoned that “nothing is ever simple with immigration law – including the determination [of] whether immigration law clearly makes a particular offense removable.” 154 Moreover, the concurrence stated that the longstanding and unanimous position of the federal courts, until Padilla, had always been that reasonable defense counsel generally need only advise their client about the direct consequences of criminal convictions. 155 Furthermore, the concurrence believed that the burden the majority wanted to impose on criminal defense counsel was too great. 156 The concurrence listed the following four reasons as to why this particular approach is problematic: 1) the statutes will not always be succinct, clear, and explicit; 2) defendants are likely to be misled if they are under the impression that counsel must provide advice regarding only one of the many collateral consequences; 3) the court’s rigid approach could be softened by the use of a standard form given to noncitizen defendants and/or trial judges taking on the authoritative role of informing the non-citizen defendants of the direct and collateral consequence of entering a guilty plea; and 4) expanding the scope of
153

Padilla, 130 S. Ct. at 1487-88 (Alito, J. and Roberts, J., concurring) (“Criminal defense attorneys are not expected to possess-and very often do not possessexpertise in other areas of the law, and it is unrealistic to expect them to provide expert advice on matters that lie outside their area of training and experience.”).
154 155 156

Id. at 1490. Id. at 1487.

Id. at 1490 (noting that the scope of counsel’s duty to offer advice concerning deportation consequences may turn on how difficult it is to determine those consequences as severe; the Court tries to downplay the burden by its instruction that if the terms of the relevant immigration statute are succinct, clear and explicit in defining removal consequences, then counsel has an affirmative duty to inform the client; however, when the law is not succinct, clear and explicit, nothing more is required than to inform the client that pending criminal charges may carry a risk of adverse immigration consequences).

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criminal defense counsel’s duties under the Sixth Amendment was not based on proper similarities. 157 3. Dissenting Opinion: The Birth of the Padilla Warning In his dissent, Justice Scalia argued that, by the Court making the issue at hand a constitutional issue, there remained no opportunity for any legislative possibility of amending the decisions that were handed down. 158 His opinion expressed that “the Constitution . . . is not an all-purpose tool for judicial construction of a perfect world; and when [courts] ignore its text in order to make it that, we find ourselves swinging a sledge where a tack hammer is needed.” 159 Furthermore, Justice Scalia stated that the majority provided no rationale for when the ramifications of collateral consequences would end. 160 Specifically, he stated that “criminal conviction[s] can carry a wide variety of consequences other than conviction and sentencing, including civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses . . . ,” all of which are serious consequences leading to a constitutional slippery slope. 161 According to Justice Scalia, pursuant to the new-found expansion of the Court’s definition of constitutionally effective assistance of counsel, counsel must now warn defendants of potential removal consequences. 162 However, he asserts that Congress is better equipped to handle matters like these because legislation can specify which categories of misadvice are relevant; specifically, which collateral consequences
157 158 159 160 161 162

Id. at 1490 - 93. Padilla, 130 S. Ct. at 1497 (Scalia, J., dissenting). Id. at 1494. Id. at 1496. Id.

Id. (stating that counsel must now provide defendants with a Padilla warning – a warning referring to potential removal consequences).

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counsel must bring to a defendant’s attention and which warnings must be given. 163 V. SOLUTIONS Arguments and Possible Solutions: Who Holds the Key? The legal problem discussed here is that non-citizens charged and convicted of crimes are faced with, and in all probability will continue to face, ineffective assistance of counsel because most attorneys are not familiar with immigration law, specifically the immigration consequences that arise from a guilty plea. 164 The time for a solution is long overdue and, like most solutions to any problem, one must look to the root of the problem in an effort to find a plausible solution. In this case, the problem of ineffective assistance of counsel is rooted in legal forums across the U.S. because it is in such forums that attorneys obtain their substantive legal education. Proposal 1: Addition of Subject Matter to the State Bar Immigration law, specifically immigration consequences that might lead to claims of ineffective assistance of counsel, can be added as a tested subject on state bar exams, particularly in states where there are a substantial number of immigration cases. The presence of such subject matter on state bar exams will induce law school students to gain basic fundamental knowledge about immigration consequences that might arise at deportation proceedings. Students may elect to take advantage of an immigration law course during their attendance at law school or during their bar exam study before taking the state administered bar exam. Either way, students will at least have some background on the effects of ineffective assistance of counsel in connection with immigration consequences.

163 164

Id.

Padilla, S. Ct. at 1476 (“In post conviction proceedings, [Padilla’s counsel] . . . told [Padilla] not to worry about deportation since he had lived in this country so long.”).

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An illustrative model of this proposal is the inclusion of Indian law to the New Mexico state bar exam. 165 “In 2002, New Mexico became the first state to place Indian law on its state bar exam . . .” 166 in response to the lack of Indian law competency among New Mexico licensed attorneys. 167 Attorneys practicing in New Mexico found it common to inadvertently experience Indian law issues in their respective cases; however, some lacked awareness of its complexity. 168 Although some attorneys were knowledgeable about Indian law, because of its “inconsistency, non-uniformity and recent United States Supreme Court decisions,” they found themselves faced with more questions than answers. 169 In fact, most answers to Indian law issues often contained “conditioners and situational contexts.” 170 Therefore, due to the lack of licensed attorneys who were competent and knowledgeable about Indian law, the hardships faced by low income Indians in need of representation were exacerbated. 171 Accordingly, the University of New Mexico - School of Law decided to take action as a result of the social and political history regarding American Indians and because it was the only law school in the

Gloria Valencia-Weber & Sherri Nicole Thomas, When the State Bar Exam Embraces Indian Law: Teaching Experiences and Observations, 82 N.D. L. REV. 741, 743 (2006).
166

165

Id. (“This decision made basic knowledge of Indian law part of the competency expected of all licensed attorneys.”). Id. at 750.

167 168

Id. at 749 (“While it is common for attorneys to bump into Indian law issues in the course of handling matters such as contracts, family law, natural resources, and water law, many lack formal study of Indian law.”).

Id. at 749-50 (referring to licensed attorneys showing up at the University of New Mexico law library and asking librarians to assist them in finding answers to the complexity of Indian law). 170 Id. at 750.
171

169

Id. (“[T]he major pro-bono project to provide guardians at litem for children did not include Indian children because the organization and its staff lacked expertise in the Indian Child Welfare Act.”).

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state. 172 Although it might seem that the addition of a subject to a state bar might take a lot of time, the project to place Indian law on the New Mexico state bar was completed in seven months. 173 The history of Indian law at New Mexico’s law school created a supportive environment within the bar and from the citizens of New Mexico. 174 After viewing this addition as a success, the state of Washington has succeeded in becoming the second state to add American Indian law on its state bar exam. 175 Other states with high American Indian populations are currently considering its addition as well. 176 The facts presented relative to the inclusion of Indian law sound strikingly similar to the current immigration law dilemma. As a result, the point is clear. If an attorney practices in an area that is prevalent to certain legal issues, he or she should be competent in that area of law so that they can adequately and effectively represent their client. Proposal 2: Mandatory CLE Certification in Exchange for Court Appointments (for Practicing Attorneys) Another possible solution for eliminating ineffective assistance of counsel in the immigration law sector would be to
172 173

Id. at 743.

Id. at 751-52 (illustrating that during the seven month time period, the inclusion of Indian law on the New Mexico state bar was achieved by the following seven steps: 1) project request was made to the New Mexico Native American Bar Association; 2) research for the project began; 3) a proposal was drafted to include Indian law as a New Mexico bar exam subject; 4) project leaders secured support from attorneys all over the state; 5) the proposal was then presented to the New Mexico State Board of Bar Examiners; 6) the Board rendered its vote; and 7) on February 28, 2002, the New Mexico Supreme Court approved the inclusion of Indian law on the state bar exam). Id. at 753. Id.

174 175 176

Id. at 754 (referring to Arizona, Oklahoma, Wisconsin, Montana, Oregon, Idaho and California as states with bar leaders that are considering the addition of Indian law onto their respective state bar exams).

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enforce a mandatory Continuing Legal Education (hereinafter, “CLE”) or certification class via state law. This option is available for practicing attorneys unable to reap the benefits of taking an immigration law class during their enrollment in law school. Such mandatory certification would primarily be tailored for attorneys receiving state court appointments in jurisdictions where a licensed attorney must first register with the courts in order to receive the state court appointments. 177 For example, in regions where sizeable immigrant populations exist, there are already licensed and practicing attorneys whose practice is primarily based on receiving state court appointments on a daily basis. 178 Although their practice consists of mainly that, most of those attorneys are uninformed of current immigration law as they continue to violate Sixth Amendment noncitizen rights because they fail to inform the non-citizens of immigration consequences. 179 Accordingly, court appointed cases dealing with non-citizens charged with crimes should be disbursed to only those attorneys who have attended immigration law CLE classes and hold a valid and current CLE certification on immigration law. The court in Padilla explained that it was not difficult to find a deficiency in the case because “[t]he consequences of Padilla’s plea could easily be determined from reading the removal statute . . .” 180 However, if counsel is not familiar with the statute or does not know where to find it, how can he or she be held responsible for something that he or she did not know? As illustrated throughout this writing, immigration law changes very frequently, so counsel must be kept abreast of where to find research when handling an immigration law case. Generally, the best idea is to keep counsel informed by making CLE immigration courses mandatory, especially if counsel chooses to practice immigration law.
177

Telephone interview with Cecilia Olivarez-Garza, Attorney at Law, Gault, Nye & Quintana, LLP (Jul. 22, 2010).

178

Interview with Elizabeth M. Garcia, Attorney at Law, Willette & Guerra, L.L.P., McAllen, Tex. (Jul. 16, 2010) (discussing some of the practices of current counsel in Hidalgo County located in south Texas). Id. Padilla v. Kentucky, 130 S. Ct. 1473, 1476-77 (2010).

179 180

134

A starting point for a proper and efficient CLE course would be to discuss the “basic considerations a criminal defense attorney must consider when undertaking the representation of any criminal defendant,” along with immigration consequences, specifically those of deportation. 181 Also, immigration law nuances available during the plea-bargaining process would be highlighted during the CLE seminars. As the court opined in Padilla, “informed consideration of possible deportation can only benefit both the State and non-citizen defendants during the plea-bargaining process.” 182 Overall, the point of immigration CLE courses would be to primarily emphasize that counsel will likely be held liable for ineffective assistance of counsel if their non-citizen client is not informed of the proper consequences associated with taking a guilty plea. A possible legal malpractice claim could be avoided with the knowledge obtained in an immigration CLE course. Proposal 3: Addition to law school curriculum Currently, immigration law is not a part of the mandatory curriculum in law schools in states where there are a substantial number of cases with non-citizens involved, nor is there enough student awareness on immigration issues. Given the aforementioned proposals, it would behoove law schools to focus on immigration law in their curriculums. To date, law school students across the nation are generally offered immigration law classes as electives. As an elective, immigration law is often overlooked and not given the importance it deserves. Most law school students do not know any
181

See, e.g., VanGilder, supra note 10, at 834 (referring to details about CLE seminars administered in Colorado that address the overlap between immigration and criminal law).

182

Padilla, 130 S. Ct. at 1486 (“Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.”).

135

better 183 and usually just take the required courses and choose less complex legal subjects as their electives. As a result, most students graduating from law school and entering the legal arena as lawyers have no clue what to look for when faced with immigration law issues. For the most part, handling immigration issues is inescapable in federal court appointments where there exists a high immigrant population. 184 Some judicial districts affirm that such federal judicial appointments must be handled even if an attorney does not specialize in immigration law. 185 Thus, if law schools were to make immigration law more prominent by focusing on increasing student awareness relative to what constitutes ineffective assistance of counsel, some of the immigration law issues addressed by the courts might be alleviated. 186 Moreover, law schools located in states with a substantial number of immigration cases may add an immigration law class to the law school curriculum. It has become clear that criminal defense attorneys handling immigration issues need to have some basic legal knowledge about immigration law. How else could they
Ethan J. Leib, Adding Legislation Courses to the First-Year Curriculum, 58 J. LEGAL EDUC. 166, 175 (2008) (“Sometimes, of course, students don’t know what is best for their educations . . . [b]ut that doesn’t mean that [these courses] aren’t critical to good lawyering and that they aren’t foundational courses that students might be required to take . . .[;] [s]tudents might not vote for Civil Procedure in a popularity contest of courses, but few really think students shouldn’t get some grounding in Procedure.”).
184 183

Telephone interview with Cecilia Olivarez-Garza, Attorney at Law, Gault, Nye & Quintana, LLP (Jul. 22, 2010) (discussing that federal court appointments (specifically those in Hidalgo County, located in south Texas and a part of the 5th Circuit) may not be turned down if counsel is licensed to practice in federal court because his or her name is automatically added to the court’s judicial appointment rotating system. Such judicial appointments may be challenged by counsel if his or her person is in danger or if a moral issue arises; however, these are very narrow exceptions). Telephone interview with Cecilia Olivarez-Garza, Attorney at Law, Gault, Nye & Quintana, LLP (Jul. 22, 2010) (discussing how federal court appointments are assigned in the south Texas/5th Circuit region). Padilla v. Kentucky, 130 S. Ct. 1473, 1487 (2010).

185

186

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possibly know about immigration statutes or codes? The historic lack of emphasis on the importance and need of immigration law courses for students who intend to take immigration cases in practice has resulted in the needless deportation of thousands of non-citizens, 187 violations of constitutional rights, 188 and legal malpractice claims due to ineffective assistance of counsel. 189 Some opponents to this proposal might claim that the addition of another mandatory law course is too difficult and cumbersome. However, change is necessary because the world of law is not complacent. 190 In fact, other law schools have effectively added courses to their mandatory curricula because of societal and political changes. 191 For example, in 2006, Harvard Law School announced a change to its first year curriculum that added International Law. 192
187

Sweeney, supra note 4, at 47 (“Thousands of long-term legal permanent residents are removed from the United States each year because they have been convicted of criminal offenses, many quite minor.”).

188

Janvier v. United States, 793 F.2d 449, 451 (2d Cir.1986) (“It is well established that a defendant to a criminal prosecution has a Sixth Amendment right to the effective assistance of counsel at all critical stages of the prosecution where his substantial rights may be affected, and that sentencing is one such stage.”). Padilla, 130 S. Ct. at 1473 (“Counsel engaged in deficient performance by failing to advise defendant that his plea of guilty made him subject to automatic deportation.”).

189

Jonathan D. Glater, Harvard Law Decides to Steep Students in 21st-Century Issues, N.Y. TIMES, Oct. 7, 2006, http://www.nytimes.com/2006/10/07/education/07harvard.html?_r=1(quoting Elena Kagan, former Dean of Harvard Law School, “the world of law has changed . . . changes in what our students will do and what they will need to know”). See Valencia-Weber, supra note 163, at 750 (discussing the importance of Indian law competency among New Mexico licensed attorneys); see also Leib, supra note 181, at 169 (discussing Harvard’s inclusion of International Law); see also Molly Davis, Law School Revises First Year Courses, THE EMORY WHEEL, April 1, 2010, http://www.emorywheel.com/detail.php?n=28266 (“Changes to the first-year curriculum include the addition of a required course about legislation and registration to be taken during the first semester . . .”).
191

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Also, Emory School of Law announced on April 1, 2010, that it too was going to make a change in the first year curriculum by adding Legislation and Registration. 193 Such law schools decided to progress and adhere to the changes in society. Similarly, it is time for immigration law to be prioritized and added to the law school curricula, particularly in states with high immigration. Future lawyers must be introduced to immigration law during their three year enrollment in law school, specifically the liabilities that will ensue from ineffective assistance of counsel for non-citizens. Proposal 4: Reinstatement of JRAD Moreover, the courts’ decisions on previous immigration cases illustrates increased criminalization in immigration law and a lack of judicial flexibility that has resulted in harsh results, specifically deportation as a consequence of a criminal plea. Accordingly, this article’s fourth proposal is that Congress restore the judicial recommendations against deportation procedures, primarily for lawful permanent residents. Judges handling cases that involve non-citizens are best equipped to decide if non-citizen defendants deserve the opportunity to remain inside the United States after serving their rendered sentence(s); therefore, deportation decisions should be left to Judges and not Congress. Such would ensure that immigration judges would be able to afford a humanized effect on each case. 194 The presiding judge would render a judicial recommendation against deportation if the non-citizens could show that they deserved a second chance. 195 Section 212(c) removal relief would again be based on the weight of
192

Leib, supra note 181, at 169 (“Harvard’s inclusion of International Law in the required first year curriculum has been treated by some as having political and ideological content.”). Davis, supra at note 189.

193 194

E.g., Lonegan, supra note 5, at 56 (referring to judge expressing regret for deporting a lawful permanent resident after being convicted of possession of $5 worth of cocaine, a crime that carried a fine of only $250). Sweeney, supra note 4, at 60.

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the negative factors against the positive factors. 196 Thus, the immigration judge would again be given the opportunity to “balance the positive and adverse factors and then decide on the record as a whole whether the [non-citizen] applicant was deserving of a positive exercise of discretion.” 197 By instituting such a change, immigration judges would once again be able to afford each person facing deportation an individualized and fair opportunity to be heard. VI. CONCLUSION Padilla certainly stands as a case of first impression. The Court in Padilla affirmed that immigrants should not be held accountable when they rely on incorrect advice from their lawyers or where counsel fails to provide any immigration advice at all. 198 The Padilla Supreme Court opinion stated that, under the U.S. Constitution, no criminal defendant, whether a citizen or not, should be left to the mercies of incompetent counsel. 199 The significance of the Padilla holding is that defense counsel now has to inform clients of possible immigration consequences. The Court stated that changes to U.S. immigration laws have dramatically raised the stakes of a noncitizen's criminal conviction and further expressed that providing accurate legal advice for non-citizens accused of crimes has never been more important. 200 The right to counsel is at the very core of our
196

Id. at 61 (“Negative factors . . . include the nature and underlying circumstances of any immigration violation or ground for exclusion [including] the nature and seriousness of any criminal convictions, [weighed against] family ties in the United States, residence of long duration, age at entry, hardship to the family or the applicant if deported, employment history, property, military service, service to the community, evidence of rehabilitation, and other evidence of good character.”). Id. Padilla, 130 S. Ct. at 1487. Id. at 1493. Id. at 1476.

197 198 199 200

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criminal justice system, and such constitutionally mandated right is to be protected and upheld at all times. The Sixth Amendment guarantees effective assistance of counsel and those in the legal profession hold the key to providing that constitutional right. Legal knowledge comes primarily from the legal forum and legal education arenas. Let us no longer allow one more immigrant to be deported because of a lack of legal knowledge. Lawyers have been afforded the right to speak and advocate for others; therefore, let us not deviate from the beauty of our justice system: fairness to all.

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