Duty of Counsel Litigation

The scope of defense counsel’s duty under Padilla is the subject of much litigation, and IDP is monitoring and supporting efforts to develop a robust interpretation of this duty.  Questions have arisen as to whether Padilla requires that counsel inquire as to citizenship, seek to negotiate a disposition that avoids or mitigates immigration consequences, and give advice about other immigration consequences such as inadmissibility, ineligibility for discretionary relief from removal, bars to asylum claims, etc.  Courts are also questioning whether the holding of Padilla applies to people who did not have legal status when they pleaded guilty.

Duty to investigate citizenship status

IDP is pleased to report good New York case law on the “duty to inquire.”  See the First Dept. opinion in People v. Chacko (2012) and the Second Dept. opinion in People v. Picca (2012) mandating a duty to inquire about citizenship. The Picca Court, echoed by Chacko, reasoned that ”to require that defendants apprehend the relevance of their noncitizenship status, and affirmatively provide this information to counsel, would undermine the protection that the Padilla Court sought to provide to noncitizen defendants.”

The Chacko party brief and an IDP amicus assert that defense counsel has a duty to ask a defendant whether he is a U.S. citizen; the briefs also argue that defense counsel has a duty to attempt to negotiate a reasonably available alternative disposition that mitigates or eliminates the immigration consequences. Dorea Silverman of Charles A. Ross & Associates LLC provided pro bono co-counsel.

Duty to negotiate effectively

IDP and the National Immigration Project of the National Lawyers Guild (NIP) have issued a practice advisory on how to use the U.S. Supreme Court’s 2012 decisions in Missouri v. Frye and Vartelas v. Holder to support an argument that the scope of defense counsel’s duty includes seeking a reasonable resolution that mitigates or eliminates the immigration consequences.

Duty to advise of other immigration consequences

New York courts have begun to address whether Padilla applies to other immigration consequences.  In People v. Burgos (2012) the trial court held that under Padilla, a defense attorney must inform a defendant if a conviction will present a bar to attaining legal status. Similarly, in People v. Jaikaran (2010), the trial court held that Padilla requires advice that a conviction will render a defendant ineligible for a waiver needed to obtain a green card.