by Manny Vargas
Ten years ago, the Immigrant Defense Project (IDP) awaited the Supreme Court’s decision in Padilla v. Kentucky with some trepidation. IDP and others who cared about the plight of immigrants facing criminal charges without correct (or any) advice about the immigration law implications feared that the Supreme Court might say “tough luck” and proclaim that the Constitution required advice and effective counsel only about criminal law penalties and not about the additional harsh immigration law penalty often faced by immigrant defendants such as Mr. Padilla: mandatory and permanent separation from life and family in the United States.
Mr. Padilla, a lawful permanent resident immigrant who had lived in the United States with his family for 40 years and had served in the U.S. military during the Vietnam War, was accused of a drug offense. He had a defense to the charges but was advised by his lawyer that he risked a long prison sentence if he took his case to trial and lost and that he “did not have to worry about immigration status since he had been in the country so long.” He therefore agreed to give up his right to a trial and plead guilty. But his lawyer’s advice not to worry about his immigration status was wrong. His plea would in fact trigger automatic deportation without regard to his long residence, his family ties, his military service and other favorable factors.
How had we arrived to this point where the immigration consequences of a guilty plea could be so severe without a requirement that the individual considering a plea be warned and correctly advised about such draconian consequences? Part of the story is that, just five years prior to Mr. Padilla’s 2001 criminal case, the law had become really grim for immigrants facing criminal charges. Previously, it was almost always the case that a long-time resident like Mr. Padilla, facing deportation based on a past criminal charge, could at least seek a waiver based on favorable factors such as long residence in the U.S., family ties and military or other service to the community. But in 1996, Congress passed, and President Clinton signed, laws making deportation mandatory after conviction of many offenses including the transporting marijuana offense with which Mr. Padilla was charged. This meant that immigration judges could not waive deportation in such cases no matter how compelling the favorable factors.
On top of that, in general, courts had not recognized any legal duty of criminal defense lawyers to advise noncitizen defendants of the potential immigration consequences of a guilty plea. For example, just one year before enactment of the 1996 immigration laws, the New York State Court of Appeals ruled in the case People v. Ford that criminal defense lawyers had no constitutional duty to warn defendants of what the court called “possible” deportation consequences. The New York State court, like many other courts, based its ruling on depicting immigration consequences as “collateral,” in contrast to “direct” consequences that have a “definite, immediate and largely automatic effect on defendant’s punishment.” And, even after the 1996 laws made even clearer just how increasingly harsh and automatic immigration consequences of a conviction had become, many courts continued to rely on this direct/collateral distinction in refusing to provide relief for immigrants who pled guilty without knowledge of the immigration implications.
Soon after the 1996 laws were enacted, IDP sought judicial recognition of the importance of proper immigration advice by criminal defense counsel in the course of a multi-year litigation campaign seeking to protect the rights of immigrants who pled guilty to deportable offenses before the new laws. When this campaign reached the Supreme Court in the 2001 INS v. St. Cyr case, IDP collected information about trainings and other resources for a document lodging demonstrating how defense lawyers were trained and advised to inform immigrant defendants pleading guilty before 1996 about then availability of a waiver of deportation. IDP filed this lodging with the Court in connection with an amici curiae brief that we drafted on behalf of the National Association of Criminal Defense Lawyers (NACDL) and other criminal defense organizations calling for respecting the settled expectations and reliance of immigrants on such advice. The Supreme Court rejected retroactive application of the 1996 repeal of the deportation waiver at issue and cited our amici brief in finding that “competent” defense counsel would have followed the guidance of numerous practice guides and advised noncitizen clients considering a guilty plea about available relief from deportation.
There followed afterward additional inroads in recognizing the legal responsibility of criminal defense counsel and providing a remedy for ineffective counsel at least in cases where a defense lawyer had affirmatively misadvised a noncitizen defendant regarding the immigration consequences of a plea. For example, in the 2003 People v. McDonald decision, the New York State Court of Appeals deviated from its earlier People v. Ford decision to find that a defense counsel’s incorrect advice as to the deportation consequences of a guilty plea may constitute constitutionally deficient assistance of counsel. Nevertheless, such decisions did not provide relief for immigrants not advised at all regarding the immigration consequences of a plea. This sadly created a perverse incentive for defense lawyers seeking to avoid an ineffective assistance claim to say nothing regarding immigration consequences even though such consequences were often a greater concern for noncitizen defendants than any criminal sanctions.
And then came Mr. Padilla, taking his case all the way to the Supreme Court in pursuit of a remedy for his uninformed guilty plea. IDP worked again with NACDL and criminal defense organizations around the country on an amicus brief presenting the Court with a defense community united front on the appropriateness of imposing a duty on defense counsel to provide proper immigration advice and on the availability of resources making it practicable for counsel to do so. And, in its 2010 Padilla v. Kentucky decision, the Court agreed and, citing its earlier St. Cyr decision, found that constitutionally competent counsel would have advised Mr. Padilla that his marijuana distribution conviction made him subject to automatic deportation. Significantly, the Court refused to limit its holding to cases where defense counsel had affirmatively misadvised a noncitizen defendant. The Court stated: “A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. . . . When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all. Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.”
I happened to be at the Supreme Court for another matter the day the Padilla decision was announced. As I listened to Justice Stevens announcing the decision, I sensed that a new era had begun for the ability of immigrants to know and seek to avoid the increasingly harsh and unjust immigration consequences of a criminal case. Defense lawyers now had not only an ethical duty, but also an enforceable legal duty to provide effective representation of noncitizen clients regarding the immigration implications of a criminal case. While immigrants accused of crimes would continue to face the many other hurdles to getting justice in the criminal legal process, the Court’s decision brought new hope that they would now at least be better informed and equipped to avoid and resist unjust immigration penalties.
Manny Vargas is Founder and Senior Counsel at the Immigrant Defense Project.