Lin Jiang, Seventh Circuit: Asylum/Motion to Reopen/Ineffective Assistance of Counsel/Changed Country Conditions

Lin Jiang v. Eric Holder, Jr., 09-3179
Court of Appeals for the Seventh Circuit. Friday, March 18th, 2011
Status: Published/Precedential
Lin_Jiang_v._Eric_Holder_Jr..pdf 
Tweet

In Lin Xing Jiang v. Holder, 2011 WL 923279 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of China who had unsuccessfully endeavored to reopen her completed removal proceeding in order to advance new claims for asylum based on her contention that her previous attorney had neglected to present a claim of religious persecution to the immigration court and on her alleged fear of persecution due to having giving birth to two children in the U.S. The circuit court ruled that the Board's decision did not constitute an abuse of discretion inasmuch as the petitioner had not complied with the procedural requirements pertaining to ineffective assistance of counsel (IAC) claims and she had not established changed country conditions in her native China in order to excuse her belated motion to reopen (MTR).

The petitioner came to the U. S. Virgin Islands in 2000 and was subsequently placed into removal proceedings for being present in the U.S. without having been admitted or paroled. She filed for asylum, claiming that she had been forced to abort a pregnancy by the Chinese government. The IJ concluded that her story was not credible and thus denied her applications for asylum, withholding of removal, and Convention Against Torture (CAT) relief. She appealed the IJ's decision to the BIA, which affirmed the decision without an accompanying opinion. Over four years later, well-beyond the 90-day statutory period, she filed her MTR seeking an exemption based on changed country conditions, citing 8 CFR § 1003.2(c)(3)(i). She asserted, for the first time, that she feared persecution based on her Catholic religion. She also cited, as new evidence, the fact that, since the time of her immigration court hearing, she had given birth to two children in the U.S. in violation of China's family planning policies. In addition, she averred that circumstances had worsened for practicing Catholics in China and that, should the U.S. remove her to her country, she would return to her former underground church and risk persecution. She also related that, although she had told her immigration lawyer that she had grown up as a Catholic in China, he did not include a claim for religious persecution in her initial petition for asylum.

In rejecting this MTR, the Board concluded that the petitioner had not submitted adequate evidence that members of underground churches were in more danger than they had been at the time of her hearing in 2002. The Board noted that the petitioner neither specifically claimed that her former attorney had been ineffective nor complied with the requisite procedural formalities for an IAC claim. In a footnote, the Board identified an additional procedural deformity by virtue of the petitioner's failure to submit a new application as part of the MTR.

Before the circuit court, the petitioner conceded that the evidence presented with her motion was not technically “new” evidence. She asserted, however, that it was not available at the initial hearing before the IJ because her attorney failed to present it, thus depriving her of the opportunity to present all of her persecution claims. Citing to Toure v. Holder, 624 F.3d 422 (7th Cir. 2010), the court pointed out that asylum seekers hold no Sixth Amendment right to counsel, but that it has recognized that the denial of effective assistance of counsel may, under certain circumstances, violate the due process guarantee of the Fifth Amendment. It noted that the Board has historically acknowledged this potential for a due process violation and has formulated explicit requirements for a litigant to advance an IAC claim in a precedent decision, Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). Explaining that the court has previously upheld the Lozada protocol (including the necessity to provide an affidavit establishing the agreement with counsel, provision of notice to counsel with an opportunity to respond to the allegations, and filing of a complaint with the governing disciplinary authorities or explaining why this was not accomplished), the court observed that the petitioner failed to satisfy any of the Lozada requirements or to even articulate a specific claim of IAC.

The court also concluded that the petitioner failed to demonstrate that there were material changes in the relevant circumstances in China, declaring that cumulative evidence that the conditions asserted in the original application persisted fails to meet this burden. The court took judicial notice of the State Department's 2009 Country Report, which actually offers a glimmer of hope for practicing Catholics as it suggests a relaxation of controls over their unregistered churches. In regard to the petitioner's expression of concern for having two children in the U.S. in contravention of China's one-child policy, the court cited to its prior decision in Cheng Chen v. Gonzales, 498 F.3d 758 (7th Cir. 2007), which held that an asylum applicant cannot claim changed country conditions based on her own actions in the U.S. when the conditions in the country of origin have not materially changed. In light of the failure of the petitioner to have timely petitioned the court following the BIA's initial decision against her, the court declined to address her arguments regarding the merits of her original asylum claim.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture or CAT), was opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp No. 51 at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the U.S. Apr. 18, 1988).

Padilla v. Kentucky Reference Guide

Office of Immigration Litigation - Appellate Section
Office of Immigration Litigation Issues Reference Guide to Immigration
Tweet

http://www.justice.gov/civil/oil/OIL_Padilla_Reference_Guide.pdf

Consequences of Crimes in Response to Supreme Court Decision in Padilla v. Kentucky.

In view of the Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Office of Immigration Litigation (“OIL”) has prepared a comprehensive overview of the provisions of the Immigration and Nationality Act that are relevant to criminal aliens. The overview is intended to assist interested parties in understanding the potential immigration consequences of a plea to criminal charges. Padilla held that the Sixth Amendment requires defense counsel to advise a noncitizen client of the risk of deportation arising from a guilty plea. The Court concluded that defense counsel’s failure to so advise, or defense counsel’s misadvice regarding the immigration consequences of the plea, may constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), which may be a basis for withdrawing a guilty plea and vacating a conviction.

The Court’s holding in Padilla requires defense counsel to have a basic understanding of immigration law – an area in which they “may not be well versed” – in order to effectively advise their clients. Padilla, 130 S. Ct. at 1483. The decision is also of obvious importance, however, to federal and state prosecutors and judges, among other interested parties. This guide – to which many OIL attorneys have contributed – presents a brief, cogent, and clear introduction that identifies and summarizes the relevant statutes.

OIL includes a six-page appendix on classification that includes categorical analysis, modified categorical analysis, circumstance-specific analysis (Nijhawan), but omits any reference to Silva-Trevino.

http://www.justice.gov/civil/oil/OIL_Padilla_Reference_Guide.pdf
__________________________________________
Errors in OIL’s 2010 post-Padilla Reference Guide: “Immigration Consequences of Criminal Convictions: Padilla v. Kentucky”

Errors:

1. On page 11 of the reference guide, under "Crimes Involving Moral Turpitude" the petty offense exception found in 8 U.S.C. § 1182(a)(2)(A)(ii)(II) is misstated. The exception applies to offenses for which the maximum possible term of imprisonment does not exceed one year. OIL misstates this as "for which the maximum possible term of imprisonment was less than one year." This is significant because under California law, for example, a misdemeanor where the actual sentence didn't exceed 6 months may qualify under the exception because the possible term of imprisonment for a California Misdemeanor does not exceed one year. OIL’s error, if relied upon, would mistakenly signal to parties that a California misdemeanor conviction cannot be crafted in such a way as to fall within the petty offense exception and thereby avoid or mitigate certain immigration consequences.

2. Also on page 11 of the guide, under "Controlled Substance Offenses," OIL erroneously states that 8 U.S.C. § 1182(a)(2)(A)(i)(II) contains a marijuana exception. There is no marijuana exception under the criminal grounds of inadmissibility. Such an exception exists instead under the criminal grounds of deportability found in 8 U.S.C. § 1227(a)(2)(B)(i).

Additional Points for Consideration:

3. On page 9 of the reference guide, OIL provides a possible list of offenses that could be deemed to constitute Crimes Involving Moral Turpitude (CIMTs). Parties should be particularly careful in relying on such a list since the CIMT definition is unclear. One Circuit Court has referred to the question of what constitutes a CIMT as “a nebulous question.”  The agency and federal court interpretations of what constitutes a CIMT are constantly changing. As an example, OIL includes "Driving under the influence without a license" in its list of offenses that could be CIMTs. In the 9th Circuit, driving under the influence with knowledge that the driver is prohibited from driving with a suspended or otherwise restricted license is a CIMT.  The elements of a crime involving moral turpitude must be found in the statute of conviction. Two statutes cannot be stacked in order to create a new offense that would be considered a CIMT. For example a CA simple DUI, Vehicle Code § 23152 cannot be found in combination with a Driving w/o License, Vehicle Code § 14601 to constitute a CIMT since separately, neither of the offenses requires an individual to drive drunk with knowledge of a suspended or revoked license.  Available at: http://www.justice.gov/civil/oil/Padilla_Monograph.htm


4.  OIL uses California's burglary statute, Cal. Penal Code § 459, as an example of a statute that is "missing" the element of an unlawful or unprivileged entry required under Taylor's generic definition of burglary. In the 9th Circuit, when a statute is missing an element of the generic offense altogether, it categorically cannot fall within that generic definition since a jury would never be required to find all of the elements of the generic crime.  OIL offers a useful analysis of the Categorical and Modified Categorical Approaches outlined by the U.S. Supreme Court in Taylor (1990) and Shepard (2005).

5.  OIL completely ignores the Attorney General's highly criticized decision in Matter of Silva-Trevino that suggests that the immigration court can go beyond the record of conviction in determining when a conviction constitutes a CIMT. Silva-Trevino has been explicitly rejected by the 3rd and 8th Circuits. OIL was wise not to give weight to the AG’s clear departure from years of established Supreme Court, Circuit Court, and BIA precedent in their reference guide.

• Ocegueda-Nunez v. Holder, 594 F.3d. 1124, 1127 (9th Cir. 2010).
• Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009)(en banc).
• Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc).
• Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008).
• Jean-Louis v. Attorney General, 582 F.3d 462 (3rd Cir. 2009) and 
• Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir. 2010).

Prepared by Raha Jorjani, Supervising Attorney
Immigration Law Clinic
UC Davis School of Law
October 2010

Padilla applied retroactively to conviction which became final before March 31, 2010

UNITED STATES OF AMERICA, Plaintiff/Respondent, v. ROSELVA CHAIDEZ, Defendant/Petitioner.  No. 03 CR 636-6  UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION  2010 U.S. Dist. LEXIS 81860  August 11, 2010, Decided August 11, 2010, Filed
 
PRIOR HISTORY: United States v. Chaidez, 2010 U.S. Department. Dist. LEXIS 69561 (N.D. Ill., July 8, 2010) 

JUDGES: Honorable JOAN B. GOTTSCHALL.MEMORANDUM OPINION AND ORDER 

I. BACKGROUND Chicago, IL.
 
Defendant/Petitioner Roselva Chaidez, a lawful permanent resident of the United States, filed a petition for writ of error coram nobis complaining that neither this Latricia Tatum, Homewood, IL. court nor her attorney informed her of the immigration  consequences of pleading guilty to federal charges of mail fraud. (Doc. 178.) Chaidez pled guilty on December 3, 2003 (Doc. 50), and the court sentenced her to four  years of probation (Doc. 65). On October 11, 2009, Chaidez filed her petition as a separate civil case. Chief Judge James Holderman dismissed the case and instructed Chaidez to refile her petition as part of the original criminal case before this court. (See Case No. 09 C 6372, Doc. 3.) Chaidez filed her petition as a motion on January 25, 2010. (Doc. 171.) She filed a corrected petition on March 23, 2010. (Doc. 178.) Just one week later, the Supreme Court issued its decision in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), holding that a habeas petitioner could bring a claim for ineffective assistance of counsel where he would not have pled guilty but for the failure of his attorney to advise him of the immigration consequences of the plea. 

In a previous opinion, this court explained that Chaidez would need to provide additional factual detail in order for the court to assess her claim under Padilla. United States v. Chaidez, No. 03 CR 636-6, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2 (N.D. Ill. July 8, 2010). Chaidez has now submitted an affidavit filling in some of the gaps. (See Doc. 188.) If it appears from the affidavit that Chaidez can make out her claim, the government has requested a hearing to establish what Chaidez knew about the possibility of deportation at the time her guilty plea. 

II. ANALYSIS
A. Retroactivity
The government in its supplemental response argued that Padilla could not be applied retroactively in Chaidez's collateral attack on her guilty plea. The court concluded that Chaidez did not seek retroactive application of Padilla. Rather, the court stated, it need only apply the well-established rule in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2. Upon further consideration, the court is convinced that the issue is not so straightforward, and more thorough analysis is required. Thus, as an initial matter, the court reconsiders sua sponte its ruling on retroactivity. Only a few courts have yet weighed in on the question of Padilla's retroactive application. Some courts have found that the decision may be applied to convictions which became final before March 31, 2010, the date the Padilla decision was announced, and so is applicable retroactively. See United States v. Hubenig, No. 6:03-mj-040, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010); People v. Bennett, 903 N.Y.S.2d 696, 700 (N.Y. Crim. Ct. 2010). Other courts have reached the opposite conclusion. Gacko v. United States, No. 09-CV-4938 (ARR), 2010  U.S. Dist. LEXIS 50617, 2010 WL 2076020, at *3 (E.D.N.Y. May 20, 2010); People v. Kabre, No. 2002NY029321, 2010 N.Y. Misc. LEXIS 3275, 2010 WL 2872930, at *10 (N.Y. Crim. Ct. July 22, 2010).
 
The Supreme Court's landmark decision in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), limited the ability of courts to hear constitutional challenges to convictions on collateral review. 1 Teague clarified that a criminal defendant seeking to collaterally attack a conviction may not rely on a new constitutional rule of criminal procedure identified only after the date that the conviction became final. Id. at 310.A conviction becomes final after the judgment of conviction is rendered, the availability of direct appeal is exhausted, and the time for filing a petition for certiorari has elapsed.  Id. at 295. 

Neither the Supreme Court nor the Seventh Circuit has determined whether the retroactivity rule of Teague applies to a coram nobis petition. What precedent exists regarding coram nobis has generally cited to post-conviction cases. See Larry W. Yackle, Postconviction Remedies § 7:27 (Thomson Reuters 2010). Other circuits have applied Teague in coram nobis cases. See United States v. Mandanici, 205 F.3d 519, 527 (2d Cir. 2000); United States v. Swindall, 107 F.3d 831, 834 (11th Cir. 1997). And the Seventh Circuit has stated that, "A writ of error  coram nobis affords the same general relief as a  writ of habeas corpus." Howard v. United States,  962 F.2d 651, 653 (7th Cir. 1992). The court will  follow the Second and Eleventh Circuits and  apply Teague in this case. Although Teague was a plurality opinion, a  majority of the court quickly adopted the rule  announced in that case. See Penry v. Lynaugh,  492 U.S. 302, 313, 109 S. Ct. 2934, 106 L. Ed. 2d  256 (1989), overruled on other grounds by Atkins  v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).  The Teague analysis generally turns on whether a particular decision announced a new rule or merely applied an old rule in a new context. 3 When the Court overturns its own prior precedent, clearly a new rule is established. Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990). "[I]t is more difficult, however, to determine whether we announce a new rule when a decision extends the reasoning of our prior cases." Id.; accord Teague, 489 U.S. at 301. The Teague Court elaborated:  Generally . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent  existing at the time the defendant's conviction became final.
Id. (emphasis in original).
 
There are two exceptions to the Teague rule. First, "a new rule should be applied retroactively if it places 'certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971)). Padilla clearly does not fit within this exception because that decision dealt with an attorney's duty to inform the client about the consequences of a guilty plea; it did not contain any holding about the power of the court to impose a judgment of conviction based on a particular crime. Second, courts may retroactively apply "watershed rules of criminal procedure." Id. The Supreme Court has made clear that this is a narrow exception for rules that are "central to an accurate determination of innocence or guilty."  Bintz v. Bertrand, 403 F.3d 859, 867 (7th Cir. 2005) (noting that the Supreme Court has never applied the second Teague exception); see also United States v. Mandanici, 205 F.3d 519, 528-29 (2d Cir. 2000) (collecting Supreme Court cases rejecting application of second Teague  [exception).
 
The "dictated" language from Teague suggests a broad interpretation of what constitutes a new rule. Whenever uncertainty might exist about how a certain holding applies to a new context, then it could be said that the holding does not "dictate" the particular application. But the Supreme Court has not found that every novel application of an old precedent results in the announcement of a new rule. See, e.g., Stringer v. Black, 503 U.S. 222, 237, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992) (holding that cases invalidating use of vague aggravating factors in capital sentencing applied to Mississippi's capital sentencing law despite the fact that Mississippi used a different method of weighing aggravating and mitigating factors); Penry, 492 U.S. at 318-19 (holding that as-applied challenge to Texas death penalty statute did not seek application of new rule, despite earlier Supreme Court opinion rejecting facial challenge to the same statute). In Penry and Stringer, the Court determined that the results were "dictated" by law that existed at the time of the petitioner's conviction. Yet, neither of these decisions was unanimous. In each, Supreme Court Justices disagreed about the logical reach of the Court's earlier precedents.
 
In its habeas corpus jurisprudence, the Court has maintained a distinction between a court's statement of the law and its application of the law to a new set of facts. See Williams v. Taylor, 529 U.S. 362, 410-12, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Under Teague, a novel statement of law will be considered a new rule while a new application of the rule will not. Butler v. McKellar, 494 U.S. 407, 414-15, 110 S. Ct. 1212, 108 L. Ed. 2d 347 (1990); see also Thomas v. Gilmore, 144 F.3d 513, 516 (7th Cir. 1998) (holding that petitioner seeking per se rule that counsel must subpoena all institutional records in capital cases would be barred by Teague, "but that leaves open the possibility that his lawyer failed to come up to minimum professional standards by not subpoenaing the records in the particular circumstances of this case") (emphasis in original). This distinction is admittedly a murky one. The discovery of a new rule will depend entirely upon the level of generality at which the court defines the new holding. See Wright v. West, 505 U.S. 277, 311, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992)
(Souter, J., concurring).
 
The holding in Padilla is an extension of the rule in Strickland. Strickland held that a defendant could have his conviction reversed if he could show that his counsel's representation "fell below an objective standard of reasonableness," and that that deficiency prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687-88, 694. 4 The question for this court is whether Padilla announced a new rule, as defined by Teague, or whether the Court merely applied Strickland to new facts. The Court in Padilla was asked to address only the first half of the Strickland analysis. The Court left open the question of whether petitioner had been prejudiced by his counsel's ineffective
assistance. Padilla, 130 S. Ct. 1483-84.
 
Padilla could be described as establishing a per se rule that counsel must inform a client of immigration consequences before an informed guilty plea may be entered. Alternatively, the case can be read as a straightforward application of Strickland: the petitioner's attorney "fell below an objective standard of reasonableness," because, as a factual matter, the professional standards at the time of the client's plea required counsel to inform of potential immigration consequences.
 
Both of these potential readings have some appeal. The government points out that the language of the opinion suggests the Justices recognized the novelty of its holding. Padilla, 130 S. Ct. at 1486 ("[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation."); id. at 1488 (Alito, J., concurring) ("[T]his Court has never held that a criminal defense attorney's Sixth Amendment duties extend to providing advice about [collateral consequences of a conviction].") As one court recently observed in declaring that Padilla would not apply retroactively, the Supreme Court's decision effectively changed the law in nine circuits and the majority of states. Kabre, 2010 N.Y. Misc. LEXIS 3275, 2010 WL 2872930, at *4-5. Every circuit to have addressed the issue, including the Seventh Circuit, had concluded that deportation is a collateral consequence of a conviction and counsel is not ineffective for failing to warn the client about the potential immigration consequences of conviction. 2010 N.Y. Misc. LEXIS 3275, [WL] at (citing United States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000); United States v. Santelises, 476 F.2d 787 (2d Cir. 1973); United States v. Del Rosario, 902 F.2d 55, 284  U.S. App. D.C. 90 (D.C. Cir. 1990); United States v. Yearwood, 863 F.2d 6 (4th Cir. 1988); United States v. Banda, 1 F.3d 354 (5th Cir. 1993); United States v. George, 869 F.2d 333 (7th Cir. 1989); United States v. Fry, 322 F.3d 1198 (9th Cir. 2000); Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004); United States v. Campbell, 778 F.2d 764 (11th Cir. 1985)). These decisions are strong support for the proposition that Padilla announced a new rule. See Butler, 494 U.S. at 415.  

Before Padilla there was a split among the circuits on the question of whether counsel is ineffective in affirmatively providing incorrect information about immigration consequences. See Padilla, 130 S. Ct. at 1484. The Court held that an attorney can be ineffective both for misleading her client and for failing to provide any advice. Id. Chaidez does not aver that she was misled, but rather that her attorney provided no information about immigration consequences.
 
Nevertheless, as the Supreme Court stated in Williams, "[e]ven though we have characterized the new rule inquiry as whether 'reasonable jurists' could disagree as to whether a result is dictated by precedent, the standard for determining when a case establishes a new rule is 'objective,' and the mere existence of conflicting authority does not necessarily mean a rule is new." 529 U.S. at 410 (quoting Wright, 505 U.S. at 304). Padilla did not overturn any prior decision of the Supreme Court. Padilla, 130 S. Ct. at 1481 ("We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland."). Justice Stevens's majority opinion in Padilla relied primarily on citations to Strickland itself as well as secondary sources discussing prevailing professional norms at the time of Padilla's plea. Id. at 1482-83. And the Court noted its longstanding reliance on "[p]revailing norms of practice as reflected in American Bar Association standards and the like" to determine the extent of professional obligations in the Strickland analysis. Id. at 1482. The Court also noted that the extent of the advice counsel is required to give will be entirely fact-dependent. Id. at 1483. The law in Padilla's case was straightforward. But often the immigration consequences will be less clear, and counsel is not required to know every intricacy of immigration law. Id.
 
Further, the Court has noted that "the Strickland test provides concurring) (citations omitted); cf. Bousley v. United States, 523 U.S. 614, 619-20, 118 S. Ct. 1604, 140  L. Ed. 2d 828 (1998) (rejecting application of Teague to claim that guilty plea was not knowing and intelligent because, even though intervening Supreme Court authority provided the reason for questioning the validity of the plea, "[t]here is surely nothing new about this principle").  Justice Kennedy's analysis applies equally to Strickland claims. In Osagiede v. United States, 543 F.3d 399, 408 n.4 (7th Cir. 2008), the Seventh Circuit rejected the argument that Teague prevented a habeas petitioner from arguing that his counsel had been ineffective for failing to seek a remedy under Article 36 of the Vienna Convention. The court, quoting Justice Kennedy's concurrence in Wright, held that, although the petitioner cited no previous cases where Strickland claims had succeeded under this theory, an application of Strickland in this novel context did not create a new rule. Id. The court relied on the fact that "a reasonable Illinois lawyer would have known" that Article 36 created individual rights. Id. at 409-10.
 
Thus, the only question for this court is whether this is "the infrequent [Strickland] case that yields a result so novel that it forges a new rule." Id. at 408 n.4. It is a close question, but the court is convinced that Padilla did not announce a new rule for two reasons. First, the petitioner in Padilla brought a collateral challenge to his conviction. Thus, if Chaidez's claim is barred by Teague, Padilla's claim should have been barred as well. Prior to the decision in Teague, the Supreme Court would regularly announce new rules but not address the issue of retroactivity until subsequent cases. Teague, 489 U.S. at 302-03. This procedure led to "unequal treatment of those who were similarly situated." Id. at 303. The Teague Court declared that, going forward, the issue of retroactivity should be decided as a threshold question on collateral review, before addressing any constitutional claim. Id. at 305. Reaching out to decide constitutional questions on collateral review, even though the rule proposed by a petitioner could not be applied retroactively, would threaten "the integrity of judicial review" by "'assert[ing] that our constitutional function is not one of adjudication but in effect of legislation.'" Id. at 304 (quoting Mackey, 401 U.S. at 679). Although the government may waive  the issue of retroactivity, a court can raise it sua sponte. Thomas, 144 F.3d at 516. In Teague, the government did not argue retroactivity, but the Court felt compelled to decide the case on those grounds. In Padilla, despite three separate opinions, no member of the Court even mentioned Teague or any retroactivity issue. In fact, as two courts have noted, the majority opinion stated that "it had 'given serious consideration' to the argument that its ruling would open the 'floodgates' to new litigation challenging prior guilty pleas." Hubenig, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625, at *7 (quoting Padilla, 130 S. Ct. at 1484-85); accord Bennett, 903 N.Y.S.2d at 700. 

The Court stated:  It seems unlikely that our decision today will have significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea.  Padilla, 130 S. Ct. at 1485 (emphasis added). "If the Court intended Padilla to be a new rule which would apply only prospectively, the entire 'floodgates' discussion would have been unnecessary." Hubenig, 2010  U.S. Dist. LEXIS 80179, 2010 WL 2650625, at 7.

Jose Padilla pled guilty to three drug-related charges; final judgment was entered on October 4, 2002. Padilla filed for post-conviction relief in state court on August 18, 2004. Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008). The Supreme Court of Kentucky eventually ruled that Padilla was not entitled to relief, id. at 485, and Padilla appealed that decision to the U.S. Supreme Court.
Second, application of Padilla in cases like this one continues to promote the finality of judgments, which is the purpose behind the rule in Teague, see Gilmore v. Taylor, 508 U.S. 333, 351, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (O'Connor, J., concurring), while balancing the need to provide meaningful review of constitutional errors resulting in uninformed guilty pleas. A post-conviction court applying Strickland is bound to consider whether counsel's assistance was effective with reference to professional standards as they existed at the time of the conviction. Conner v. McBride, 375 F.3d 643, 656 (7th Cir. 2004). Critical to the Court's decision in Padilla was the fact that professional legal standards had long required criminal attorneys to inform their clients of immigration consequences. 130 S. Ct. at 1482-83. 

The Supreme Court, itself, recognized as early as 2001 that immigration consequences of guilty pleas would be critically important to defendants and that "competent defense counsel, following the advice of numerous practice guides" would be expected to advise clients of the opportunity for discretionary relief from rules permitting deportation. INS v. St. Cyr, 533 U.S. 289, 323, 121 S. Ct. 2271, 150 L. Ed. 2d 347 & n.50 (2001). In Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), a habeas case, the Court held that counsel had been ineffective in failing to examine certain mitigating evidence. The majority rejected the contention of dissenters that the opinion created a "rigid, per se" rule that could not be considered on collateral attack. Id. at  389. That decision, like the one in Padilla, relied heavily on ABA professional standards in concluding that counsel's representation had fallen below an objective standard at the time of conviction. Id. at 387.
 
The Supreme Court has employed a "functional view of what constitutes a new rule." Saffle, 494 U.S. at 488. To make out a Strickland claim, a criminal defendant will generally be required to bring in evidence that has not been made part of the record. United States v. Fish, 34 F.3d 488, 491 n.1 (7th Cir. 1994). 

On direct review, an appellate court generally cannot consider this additional evidence. Id. Thus the court hearing the Strickland claim in a collateral attack on a federal conviction will serve a function similar to the appellate court, by being the first to reconsider the work done by the trial court. This function will be especially important in cases like this one. Chaidez pled guilty, allegedly relying on the ineffective advice of counsel. She received a sentence of four months probation and, rightly, saw no reason to seek a direct appeal. Only when the immigration consequences of her plea became clear years later, after the opportunity for appeal had long since past, did she seek to challenge the plea. Virtually all criminal defendants with Padilla claims are likely to have had little reason to appeal their own guilty pleas. If the Supreme Court had refused on retroactivity grounds to reach the constitutional claim in Padilla, no court would ever have been able to establish that counsel must advise about immigration consequences of a guilty plea. The likelihood of the issue arising on direct appeal would have been miniscule.
 
Accordingly, the court holds that Padilla did not announce a new rule for Teague purposes and affirms its earlier opinion that no retroactivity problem is raised by petitioner's claim.
 
B. Chaidez's Affidavit
The court now turns to a review of the affidavit submitted by Chaidez. In its previous opinion, the court explained that coram nobis relief is available only where petitioner can show: 1) there was an error "of the most fundamental character," 2) there are "sound reasons for the failure to seek earlier relief," and 3) the petitioner "continues to suffer from [her] conviction even though [s]he is out of custody." Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2. As the court previously held, Chaidez can satisfy the first element of this test by showing that her defense attorney provided ineffective assistance. 2010 U.S. Dist. LEXIS 69561, [WL] at *2-3. Chaidez's affidavit states that her attorney "never informed me that as a non-U.S. Citizen, a lawful permanent resident was subject to removal or deportation from the United States for committing any aggravated felony without any form of relief available to me." (Aff. P 8.) Chaidez also states that had the attorney explained the immigration consequences, Chaidez would not have pled guilty. (Id. P 10.)
 
Next, the court held that Chaidez could establish the second element of the coram nobis standard by showing that she had a good reason for waiting until now to raise the issue. Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *4-5. The affidavit states that she "first became aware of my immigration troubles quite by accident in early 2009." (Aff. P 14.) Chaidez avers that she learned that she could be deported only after she attempted to apply for citizenship (id. PP 15-18), just a few months before she first sought relief from her conviction. 7  7 Chaidez's affidavit contains an apparent inconsistency. 

She states: 
Then on or about December 2009, I received a Notice to Appear before an immigration judge for removal proceedings. I immediately contacted my U.S. Probation Officer, Juan Tappia, who gave me the name of my current immigration lawyer, Gerardo Gutierrez.  (Aff. PP 18-19.) 

This suggests that Chaidez did not meet with her attorney until at least December; however, she first filed her petition through counsel in October 2009. Nevertheless, the affidavit also states that Chaidez first learned of the possibility of deportation in "early 2009," and the court relies on that factual averment in concluding that Chaidez may be able to satisfy the requirements of coram nobis.
 
Finally, the court held that Chaidez could establish the third element of the coram nobis standard because she pled guilty to a crime for which federal law permits the Attorney General to seek deportation. Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *4. And, in fact, Chaidez alleges that the government has initiated removal proceedings against her. (Aff. P 18.) Now that Chaidez has established a legally sufficient claim for relief, she is entitled to an evidentiary hearing. 8 See United States v. Bejacmar, 217 Fed. Appx. 919, 921 (11th Cir. 2007) (quoting Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002)) (where coram nobis petitioner "alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim"); United States v. Liska, 409 F. Supp. 1405, 1406 (E.D. Wis. 1976)
("Where . . . the [coram nobis] petitioner has alleged in a sworn affidavit facts which, if true, might well entitle him to some form of relief, it would be improper to deny him a hearing on his claim."). Chaidez should be prepared to present evidence on all elements of her claim, and the government will
[*23] be permitted to cross examine petitioner and present any evidence contradicting the facts as alleged by Chaidez. Chaidez faces a heavy burden, because counsel is presumed effective. Fish, 34 F.3d at 491. Chaidez must show that counsel's performance "fell below an objective standard of reasonableness," and "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. 8 

At a court appearance on August 11, 2010, the government sought permission to file a response to Chaidez's affidavit. The court ordered the response by August 23, 2010. (Doc. 192.) If the government points to any deficiencies with the affidavit that are not noted by the court, the court may reconsider this section of the opinion at that time.
 
III. CONCLUSION
For the reasons stated above, Chaidez is entitled to a hearing on her claim of ineffective assistance of counsel. /s/ JOAN B. GOTTSCHALL United States District Judge  DATED: August 11, 2010
Tweet

Padilla & prosecutors duty

Defense counsel should be aware that prosecutors also have a responsibility to consider deportation and other so-called “collateral” consequences in plea negotiations. Prosecutors are not charged merely with the obligation to seek the maximum punishment in all cases, but with the broader obligation to “see that justice is accomplished.” National District Attorneys Association, National Prosecution Standards § 1.1 (2d ed. 1991). Prosecutors are thus trained to take these collateral consequences into account during the course of plea bargaining. E.g. U.S. Dep’t of Justice, United States Attorneys Manual, Principles of Federal Prosecution, § 9- 27.420(A) (1997) (in determining whether to enter into a plea agreement, “the attorney for the government should weigh all relevant considerations, including . . . [t]he probable sentence or other consequences if the defendant is convicted”) (emphasis added). These prosecutor responsibilities can be cited whenever a prosecutor claims that he or she cannot consider immigration consequences because to do so would give an unfair advantage to noncitizen defendants.

Courts have stated that immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, e.g. the handbook for trial attorneys states that "the respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness." Handbook for Trial Attorneys §  1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992) (finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that "might sometimes trump the desire to pound an opponent into submission"); see also Reid v. INS, 949 F.2d 287 (9th Cir. 1991) (noting that government counsel has an interest only in the law being observed, not in victory or defeat). 

Tweet

Padilla v. Kentucky and the Immigration Consequences of Crimes

On March 31, 2010, in a landmark decision called Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment requires criminal defense counsel to advise a noncitizen defendant regarding the immigration consequences of a guilty plea, and that absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

On Immigration Advocates Network:

The "Immigration and Crimes" library contains:
- "National Practice Advisory: Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," by the Immigrant Defense Project on behalf of the Defending Immigrants Partnership at http://www.immigrationadvocates.org/link.cfm?14988
(login required). This national practice advisory provides a summary and key points of the Padilla decision for criminal defense lawyers, a brief review of select defense lawyer professional standards cited by the court, an immigration consequences of crimes checklist, and a summary of resources available to criminal defense lawyers nationally.
- "Immigration Consequences of Criminal Convictions Checklist" at http://www.immigrationadvocates.org/link.cfm?14989
(login required). This is a one page reference sheet that provides an overview of the immigration consequences of criminal convictions.
- "Removal Defense Checklist in Criminal Charge Cases" at http://www.immigrationadvocates.org/link.cfm?14990
(login required). This checklist summarizes some defensive legal arguments and strategies that non-citizens and their legal representatives may pursue in removal proceedings involving crime-related charges.
- Quick reference guides and manuals on the immigration consequences of state offenses in over 18 states and for federal offenses at http://www.immigrationadvocates.org/link.cfm?14991 (login required). This section of the library contains 11 comprehensive charts, including Arizona, California, Florida, Illinois, Indiana, New Jersey, New York, Virginia, Washington, Wisconsin, and federal. It also includes six abbreviated charts that cover Connecticut, Florida, Vermont, New Mexico, North Carolina, Massachusetts, and Texas.

- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Approach to Aggravated Felony Determinations," by the Immigrant Defense Project and the National Immigration Project, at http://www.immigrationadvocates.org/link.cfm?14992 (login required). This practice advisory analyzes the Nijhawan's impact on the application of the categorical approach to aggravated felony determinations generally, and provides specific suggestions on how Nijhawan may be used affirmatively to overcome unfavorable case law in certain jurisdictions on certain aggravated felony issues, including the reach of the sexual abuse of a minor and drug trafficking grounds.

- "Practice Advisory: The Impact of Nijhawan v. Holder on the Application of the Categorical Analysis to Selected Grounds of Inadmissibility and Deportability," by the Immigrant Legal Resource Center, at http://www.immigrationadvocates.org/link.cfm?14993
(login required). This practice advisory provides a summary of the opinion, practice tips for criminal and immigration counsel, highlights one issue to be considered under the categorical approach called the "missing element" rule, and explores the potential effect of the decision if courts apply Nijhawan to the grounds of inadmissibility and deportability.
- "Practice Advisory: Recent Developments in the Categorical Approach: Tips for Criminal Defense Lawyers Representing Immigrant Clients," by the Immigrant Defense Project, at http://www.immigrationadvocates.org/link.cfm?14994 (login required). This practice advisory discusses the basics of the "categorical approach" that immigration courts employ to determine whether a state or federal criminal offense falls within the criminal grounds of removal (deportation) and why it is important to criminal defense attorneys. It also provides background on recent developments in the "categorical approach" and provides practice tips to help criminal defenders represent immigrant clients to take advantage of the categorical approach where it applies and to avoid or mitigate negative immigration consequences under these new legal developments.

- "Practice Advisory: Defense Arguments Against Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)," by the Immigrant Legal Resource Center, at http://www.immigrationadvocates.org/link.cfm?14995 (login required). This advisory provides arguments to refute the BIA's decision that a respondent bears the burden of document production to establish that a conviction under a divisible statute is not a bar to relief and that any conviction of a crime involving moral turpitude is a bar to non-LPR cancellation.

The "Podcasts" section contains:

- "Immigration Consequences of Crimes: Statutory Rape - When is it an Aggravated Felony," by Kathy Brady, Senior Staff Attorney at the Immigration Legal Resource Center. This podcast analyzes the BIA and circuit court decisions on statutory rape, consensual sex and sexual abuse of a minor, misdemeanor and felony convictions in this area of law, the importance of examining the record of conviction and other related issues at http://www.immigrationadvocates.org/link.cfm?10563 (login required)

- "Understanding the Immigration Law Consequences of Criminal Activity," produced by the American Immigration Lawyers Association (AILA), this podcast features AILA members Mary E. Kramer, David Leopold, and Thomas E. Moseley. It provides general advice for representing foreign born clients with respect to deportation or inadmissibility consequences of pleas at http://www.immigrationadvocates.org/link.cfm?10089 (login required)
- "Common Questions and Answers on the Immigration Consequences of Juvenile Delinquency," presented by Angie Junck, Staff Attorney at the Immigrant Legal Resource Center (ILRC). This podcast discusses what a juvenile delinquency disposition is, whether there are immigration consequences to a delinquency disposition, how to obtain records of delinquency dispositions, special considerations when representing minors with delinquency dispositions and other issues at http://www.immigrationadvocates.org/link.cfm?13436 (login required)

The "Webinars" section contains:

- "Immigration Consequences of Delinquency," presented by the Immigration Legal Resource Center. This webinar provides an overview and framework for analyzing the immigration consequences of delinquency and underscores the differences from the immigration consequences of crimes analysis. It provides background and strategies on particular grounds that are troublesome for immigrant youth, such as drug trafficking, drug use, gang, and violent related offenses. It also covers legal considerations in the disclosure of juvenile conduct in immigration applications, with a special focus on Form I-485, Adjustment of Status. Finally, practitioners share challenges, strategies, and other tips in representing youth with delinquency issues and how to win these cases as a matter of discretion. It is available at http://www.immigrationadvocates.org/link.cfm?14996 (login required)

- "Crimes Involving Moral Turpitude: Advocacy Strategies in Self-Petitioning and U Visa Representation," with Ann Benson, Directing Attorney for the Washington Defender Association's Immigration Project. This webinar discusses the crimes involving moral turpitude (CIMT) grounds of inadmissibility as it relates to self-petitioning and U visa applicants. Ann also discusses how to determine which CIMT grounds apply, how to apply the current CIMT analytical framework, and how to analyze cases and advocate for clients when there is a potential CIMT offense at http://www.immigrationadvocates.org/link.cfm?14997 (login required)

- "Crimes Based Inadmissibility Issues," presented by Mary Holper, Visiting Assistant Professor at Boston College Law School, and Sarah Bronstein, Staff Attorney with CLINIC. This webinar discusses the crime based grounds of inadmissibility, including crimes involving moral turpitude, controlled substance violations, exceptions to crime based grounds of inadmissibility, and the waivers that are available at http://www.immigrationadvocates.org/link.cfm?10958
(login required)
Upcoming Trainings on Immigration and Crimes:

- On Friday, April 9, from 9 a.m. to 5 p.m. at the Dallas Bar Association, Catholic Charities of Dallas Immigration and Legal Services will host a training called, "Immigration Consequences of Crimes: Relief from Removal." More information is available at http://www.immigrationadvocates.org/link.cfm?14998

- The American Bar Association presents "The Intersection of Criminal and Immigration Laws: Padilla v. Kentucky and Other Recent Decisions of the U. S. Supreme Court," an in-person training, teleconference and live audio webcast on Thursday, April 29, 2010. More information is available at http://www.immigrationadvocates.org/link.cfm?14999

- The Immigrant Legal Resource Center is hosting a crimes webinar series from April through June, which includes: Part I: Introduction to Immigration Consequences of Crimes on Thursday, April 15 from 10:00 - 11:30 a.m. PDT; Part II: Family Immigration for Clients with Criminal Histories on Tuesday, May 4 from 12:00 -1:30 p.m. PDT; and Part III: Applications for Relief in Removal Proceedings on Thursday, June 10 from 12 - 1:30 p.m. PDT. To register, visit http://www.ilrc.org and select "seminars."

- The Defending Immigrants Partnership will be presenting a national webinar, "The Duty of Defense Counsel Representing an Immigrant Defendant After Padilla v. Kentucky," at the end of April for indigent criminal defenders. For updates visit http://www.defendingimmigrants.org.

- For ongoing immigration and crimes trainings throughout the year, visit the Law Offices of Norton Tooby website at http://www.criminalandimmigrationlaw.com

Other Resources on Immigration and Crimes:

Defending Immigrants Partnership
The Defending Immigrants Partnership website is dedicated exclusively to providing resources to criminal defenders representing noncitizen defendants at www.defendingimmigrants.org.

Immigrant Legal Resource Center
The Immigrant Legal Resource Center website contains information on the intersection of immigration and criminal law at http://www.ilrc.org/immigration_law/criminal_and_immigration_law.php

National Immigration Project of the NLG
The National Immigration Project of the NLG website includes advisories, pleadings and other information on the immigration consequences of criminal convictions at http://www.nationalimmigrationproject.org/CrimPage/CrimPage.html

Immigrant Defense Project
The Immigrant Defense Project website provides information and resources on the immigration consequences of criminal convictions for criminal defenders, immigration advocates, and immigrants at http://www.immigrantdefenseproject.org/

Criminal Defense Counsel has a Sixth Amendment obligation to inform a defendant about immigration consequences or to advise when consequences are clear

The first step has been taken to equate deportation with "punishment". If "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" then, doesn't the Constitution protect a person facing deportation? And in what ways? And does it matter whether the Respondent is an LPR with criminal convictions or an EWI with no crimes, but also no legal right to be here. In other words, is deportation a "penalty" for everyone? Has deportation moved from being a "collateral" (civil) consequence like loss of state license eligibility to a more integral consequence? If deportation is a penalty, are indigent noncitizens now entitled to appointed counsel in immigration proceedings?

Note: The Board of Immigration Appeals (BIA) has previously held that where a conviction is vacated based solely on rehabilitation or hardship rather than due to a substantive or procedural defect in the underlying criminal proceeding, the alien remains convicted for purposes of immigration law. It further found that a conviction vacated for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea is no longer a valid conviction for immigration purposes. Thus, convictions overturned under this holding in Padilla will likely not count as a conviction for immigration purposes in most jurisdictions. The 5th Circuit has amended its position with regards to its treatment of vacated convictions and follow the BIA's Matter of Pickering. A conviction vacated on the merits is no longer a conviction for immigration purposes. Decision can be read here:
http://www.ca5.uscourts.gov/opinions/pub/03/03-60842-CV0.wpd.pdf

Padilla v. Kentucky, 130 S. Ct. 1473 (2010): "Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While 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 deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Pp. 2–6".

(“[I]mmigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes. . . . These changes to our immigration law have dramatically raised the stakes of a noncitizen‟s criminal conviction . . . [and] 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.”) (internal punctuation and citation omitted); see also id. at 1481-82 (because deportation, although civil in nature, is a “particularly severe penalty,” is “intimately related to the criminal process,” and is automatic for a broad class of offenders, it is “uniquely difficult to classify as either a direct or a collateral consequence of conviction); see also id. at 1486 (“[C]ounsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”).

"Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Pp. 7–9".

"Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18".

Justice John Paul Stevens delivered the opinion of the Court in which Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor joined. The majority opinion noted:

"In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill, 474 U. S., at 57; see also Richardson, 397 U. S., at 770-771. The severity of deportation--“the equivalent of banishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390-391 (1947)--only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation."

The Court noted in a footnote to this paragraph that “we find it significant that the plea form currently used in Kentucky courts provides notice of possible immigration consequences.”

The majority opinion concluded that, “[t]o satisfy [our responsibility under the Constitution to ensure that no criminal defendant-whether a citizen or not--is left to the “mercies of incompetent counsel”], we now hold that counsel must inform her client whether his plea carries a risk of deportation.”

Justice Samuel A. Alito, Jr. filed an opinion concurring in the judgment in which Chief Justice John G. Roberts, Jr. joined. In the concurring opinion, Justice Alito wrote.

In sum, a criminal defense attorney should not be required to provide advice on immigration law, a complex specialty that generally lies outside the scope of a criminal defense attorney's expertise. On the other hand, any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the client's determination whether to enter a guilty plea. Accordingly, unreasonable and incorrect information concerning the risk of removal can give rise to an ineffectiveness claim. In addition, silence alone is not enough to satisfy counsel's duty to assist the client. Instead, an alien defendant's Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.

Justice Antonin Scalia filed a dissenting opinion in which Justice Clarence Thomas joined. He asserted that the Sixth Amendment does not guarantee sound advice on collateral consequences of a conviction. He further contended that affirmative misadvice about those consequences does not render an attorney's assistance in defending against the prosecution constitutionally inadequate.

"The Sixth Amendment guarantees adequate assistance of counsel in defending against a pending criminal prosecution. We should limit both the constitutional obligation to provide advice and the consequences of bad advice to that well defined area."

PADILLA v. KENTUCKY CERTIORARI TO THE SUPREME COURT OF KENTUCKY
No. 08–651. Argued October 13, 2009—Decided March 31, 2010 http://www.supremecourt.gov/opinions/09pdf/08-651.pdf

The petitioner, a native of Honduras who has lived in the U.S. for 40 years as a legal permanent resident, was arrested in Kentucky after it was discovered that he was transporting nearly 1,000 pounds of marijuana in his freight truck. He was indicted on various misdemeanor and felony charges, including trafficking in marijuana. The petitioner pled guilty to the drug charges reportedly after he questioned his defense attorney about immigration consequences and was told that he did not need to worry about immigration consequences since he had been in the U.S. for so long. He was sentenced to five years of incarceration followed by five years of probation.

After an immigration detainer was lodged against him, the petitioner moved to vacate the plea, asserting ineffective assistance of counsel because counsel misadvised him regarding the immigration consequences of the plea. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla post conviction relief on the ground that the Sixth Amendment’s effective assistance-of counsel-guarantee does not protect defendants from erroneous deportation advice.The Hardin Circuit Court denied the motion, but, on appeal to the Kentucky Court of Appeals, the motion was granted, and the matter was remanded to the circuit court for an evidentiary hearing. The court of appeals distinguished Com. v. Fuartado, 170 S.W.3d 384 (Ky. 2005), in which the Kentucky Supreme Court determined that collateral consequences are outside the scope of effective representation of counsel under the Sixth Amendment on the ground that the petitioner sought advice from counsel and was given “gross misadvice” and such an affirmative act by counsel could constitute ineffective assistance.

Defendants Get Enough Warning About a Guilty Plea's Consequences? 6th A. requires defense lawyers to advise on Immigration Consequences?

• Padilla v. Commonwealth of Kentucky
• Padilla v. Commonwealth of Kentucky: Interpreting Strickland’s Applicability to Misadvice Regarding Immigration Consequences (Argument Recap)">Padilla v. Commonwealth of Kentucky: Interpreting Strickland’s Applicability to Misadvice Regarding Immigration Consequences (Argument Recap)

Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

"At oral argument in Padilla v. Commonwealth of Kentucky (08-651), the Court considered whether the Sixth Amendment provides a remedy to defendants who have been misadvised by their attorneys. Arguing on Mr. Padilla’s behalf, Stephen Kinnaird asserted that his client is entitled to relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability, and therefore must meet competency standards. Although the Justices expressed reservations concerning the precedent that might be set by such a decision, pressing him to draw a line between “the consequences that count and those that don’t,” Mr. Kinnaird assured them that the use of the Strickland test can address these contextual concerns. Mr. Kinnaird also emphasized the importance of Strickland’s prejudice prong, asserting both that it was met in this case because Mr. Padilla had a reasonable chance of succeeding at trial and that the application of such a standard in similar cases would prevent courts from becoming overwhelmed by challenges to guilty pleas. However, the Justices did express concern that such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea."