The tenth anniversary of the landmark Padilla v. Kentucky decision is an opportunity to reflect on the central role of the Supreme Court on day-to-day lawyering on behalf of immigrants. Padilla is the keystone of representation for immigrants charged with crimes – the case that makes clear that immigration and criminal consequences cannot be disentangled. Meanwhile, other cases at the Supreme Court have shaped the structure of immigration consequences. As with Padilla, those cases often depart sharply from the law as it has evolved in most circuit courts. For the attorney seeking to advise a client in either criminal or immigration proceedings, understanding how issues might be reframed at the Supreme Court is essential for those clients who are prepared to endure lengthy proceedings to obtain results that allow them to remain in the United States with their families.
Before Padilla, many lower courts drew a distinction between collateral and direct consequences of criminal cases, carving out a special rule where an attorney misadvised a client. The Supreme Court rejected a distinction between failure to advise and misadvice. As Chief Justice Roberts noted at argument, a rule that only focused on misadvice would encourage lawyers to ignore immigration consequences. On this question – whether to adopt a strict line between “direct” and “collateral” consequences of criminal convictions, the Court split 7-2. While Padilla will mostly be remembered for its holding, it is also noteworthy for this important lesson – that a line adopted by most lower courts might be rejected by the Supreme Court.
Consider how the landscape has changed over the last two decades on which drug offenses can be categorized as “drug trafficking” aggravated felonies that bar most forms of relief. The list of immigrants who had to await Supreme Court review to get a chance at a relief hearing based on the equities is substantial: Lopez in 2006; Carachuri-Rosendo in 2010; and Moncrieffe in 2013. Before these decisions, lower courts and the Board of Immigration Appeals applied tests that today seem anachronistic. At one time, in some courts, any felony possession offense, or a second offense for possession of marijuana (even if both were low-level misdemeanors), or offenses that covered social sharing of marijuana were deemed aggravated felonies. But those rulings did not survive. Litigation up to the Supreme Court (with talented Supreme Court counsel and excellent amicus work) changed the day-to-day practice in immigration court.
Today, one of the greatest differences between the circuit courts and the Supreme Court is how they approach Chevron deference on immigration consequences. Circuit courts routinely treat the aggravated felony definition as subject to Chevron deference. In case after case at the Supreme Court, amici have noted the intertwined nature of immigration and criminal consequences of the aggravated felony term and urged the Court to reject that distinction. The Court has not ruled directly on the Chevron issue, but it has consistently backed away from using a deference analysis in immigration cases. As with Padilla, the analytical framework used by many circuit courts is largely irrelevant when cases reach the Supreme Court.
For day-to-day practice in immigration courts, the lesson for practitioners is that the law of the BIA, or of their circuit, may not be the law that will ultimately prevail. Those clients for whom the greatest harm is deportation might, like Mr. Padilla, be prepared to endure a difficult process to obtain a just outcome.
Nancy Morawetz is a Professor of Clinical Law at the NYU School of Law. She co-teaches and co-directs the Immigrant Rights Clinic.