Transcript Ethical Duties to Advise of Immigration Consequences, Potential Impactions of Padilla v. Kentucky, and Indigent Defense • • • Cynthia Orr NACDL Benita Jain Immigration Defense Project Hans Meyer.

Ethical Duties to Advise of
Immigration Consequences,
Potential Impactions of Padilla v.
Kentucky, and Indigent Defense
•
•
•
Cynthia Orr NACDL
Benita Jain Immigration Defense Project
Hans Meyer Colorado State Public
Defender
The ineffective
assistance of counsel
floor vs.
Ethical/professional
representation
• Highest
standard of representation is
the goal.
• IAC standards do not equal ethical
standards.
WHAT INFORMS INEFFECTIVE
ASSISTANCE OF COUNSEL?
•
•
•
•
State rules of professional conduct.
Prevailing practice.
ABA Standards for Criminal Justice.
National Legal Aid and Defender
Association Performance Guidelines.
• Nationwide Trends / Cases / Rules.
INEFFECTIVE ASSISTANCE OF
COUNSEL FLOOR
Information given Case law / statute
to client by
Defense Counsel
Trend &
Persuasive
Authority
Silence
Not IAC
∅ Ethical
Notice
? IAC
∅ Ethical
Misadvise [harm]
IAC
∅ Ethical
CONSTITUTIONALITY OF PLEA VS.
INEFFECTIVE ASSISTANCE OF
COUNSEL
• Collateral Consequences Doctrine
• Applicability to trial court v. Defense
Counsel
• What is not collateral? Sentence,
Terms of plea agreement.
COUNSEL’S OBLIGATIONS – ADVICE
 Standard 14-1.4 Defendant to be advised:
. . . (c) Before accepting a plea of guilty . . ., the
court should also advise the defendant that by
entering the plea, the defendant may face
additional consequences. . . . (listing examples). . .
. and, if the defendant is not a United States
citizen, a change in the defendant’s immigration
status. The court should advise the defendant to
consult with defense counsel if the defendant
needs additional information concerning the
potential consequences of the plea. . . .
ABA Standards for Criminal Justice, Pleas of Guilty
14-1.4(c)(emphasis added).
COUNSEL’S OBLIGATIONS – ADVICE
 Defendant to be advised:
 Grave immigration consequences flowing from
a guilty plea is a serious and growing issue.
 Deportation may be automatic following
conviction for certain offenses.
 Many states now require court to inform
defendant of potential adverse immigration
consequences
ABA Standards for Criminal Justice, Pleas of
Guilty 14-1.4(c), Comment.
TEXAS CODE OF CRIMINAL
PROCEDURE
• TEXAS CODE OF CRIMINAL PROCEDURE Art. 26.13.
Plea of guilty
• (a) Prior to accepting a plea of guilty or a plea of nolo contendere,
the court shall admonish the defendant of:
• …(4) the fact that if the defendant is not a citizen of the United
States of America, a plea of guilty or nolo contendere for the
offense charged may result in deportation, the exclusion from
admission to this country, or the denial of naturalization under
federal law;
• …(c) In admonishing the defendant as herein provided,
substantial compliance by the court is sufficient, unless the
defendant affirmatively shows that he was not aware of the
consequences of his plea and that he was misled or harmed by
the admonishment of the court.
CURRENT TRENDS
• TEXAS CODE OF CRIMINAL PROCEDURE Art. 26.13.
Plea of guilty
• (a) Prior to accepting a plea of guilty or a plea of nolo contendere,
the court shall admonish the defendant of:
• …(4) the fact that if the defendant is not a citizen of the United
States of America, a plea of guilty or nolo contendere for the
offense charged may result in deportation, the exclusion from
admission to this country, or the denial of naturalization under
federal law;
• …(c) In admonishing the defendant as herein provided,
substantial compliance by the court is sufficient, unless the
defendant affirmatively shows that he was not aware of the
consequences of his plea and that he was misled or harmed
by
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the admonishment of the court.
OREGON REVISED STATUTES
PROCEDURE IN CRIMINAL CASES
• 135.385. Guilty or no contest plea;
court's address to defendant
• (1) The court shall not accept a plea of guilty or no contest to a
felony or other charge on which the defendant appears in person
without first addressing the defendant personally and determining
that the defendant understands the nature of the charge.
• (2) The court shall inform the defendant:…
(d) That if the defendant is not a citizen of the United States
conviction of a crime may result, under the laws of the United States,
in deportation, exclusion from admission to the United States or
denial of naturalization.
PEOPLE V. POZO
• 746 P.2D 523 (COLO 1987).
• 6th Amendment right to effective
assistance of counsel requires that
attorney provide sufficient accurate advice
to enable defendant to fully understand a
and assess the seriousness of legal
proceedings
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ARE THESE COLLATERAL OR DIRECT
CONSEQUENCES
• Deportation while not in reality criminal punishment may have far
more serious direct effect on this defendant than his sentence of
imprisonment for two years. For all practical purposes, the Court
sentenced him to serve for two years in jail and the rest of his life in
exile. For the Supreme Court has said that ‘deportation is a drastic
measure, at times the equivalent of banishment or exile’ and ‘is a
penalty.’ Mr. Justice Jackson has described it as a ‘life sentence of
banishment’ I cannot believe that no ‘manifest injustice’ exists merely
because the sentence of banishment for life was not imposed
directly by the judge.” United States v. Parrino, 212 F.2d 919, 924
(2nd Cir.),cert. denied, 348 US 840 (1954)[J.Frank dissenting].
COUNSEL’S OBLIGATIONS – ADVISE
 Defense Counsel obligation – Generally
(a) Keep defendant informed about plea offer developments.
(b) Investigate and advise of alternatives and issues defendant and
counsel deem important. No recommendation to enter plea
without investigation.
(c) Ultimate decision to enter plea is defendant’s.
(d) Candor and honesty to the prosecutor.
(e) Consider whether diversion is possible.
(f) Determine and advise defendant in advance of plea of possible
collateral consequences.
ABA Standards for Criminal Justice, Pleas of Guilty 143.2 (emphasis added). See also ABA Criminal Justice
Standards, Defense Function, 4-6.1(b).
COUNSEL’S OBLIGATIONS – ADVISE
 Critical – System relies on Defense Counsel to
ensure defendant’s guilty plea is knowing,
voluntary and in defendant’s own best interest.
 Trial Court inquiry is not a substitute for
counsel’s obligations.
ABA Standards for Criminal Justice, Pleas
of Guilty 14-3.2.
COUNSEL’S OBLIGATIONS – GENERALLY
 Defense Counsel as fiduciary given serious and
lasting effect of Collateral consequences on
family and client.
 Individualized evaluation of circumstances.
 Assumes counsel fulfills duty to understand
client’s particular concerns & circumstances.
ABA Standards for Criminal Justice, Pleas
of Guilty 14-3.2.
COUNSEL’S OBLIGATIONS
• What are the client’s goals?
– Avoid jail time?
– Avoid fines?
– Avoid being moved far from family?
– Minimize adverse immigration consequences?
COUNSEL’S OBLIGATIONS –
COLLATERAL CONSEQUENCES
 “Number and significance of collateral consequences
require separate standard on this obligation.
 “. . . [I]t may well be that the client’s greatest priority will
be the immigrations consequences of conviction.”
 “. . . [L]awyer should be familiar with the basic
immigration consequences that flow from different types
of guilty pleas. . .”
ABA Standards for Criminal Justice, Pleas of Guilty 143.2(f)(Comments).
Rule 11, Federal Rules of Criminal
Procedure
• (2) Ensuring That a Plea Is Voluntary. Before
accepting a plea of guilty or nolo contendere,
the court must address the defendant
personally in open court and determine that
the plea is voluntary and did not result from
force, threats, or promises (other than
promises in plea agreement).
• (3) Determining the Factual Basis for a Plea.
Before entering judgment on a guilty plea,
the court must determine that there is a
factual basis for the plea.
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IAC FLOOR
• Affirmative misadvice regarding immigration of conviction
constitutes ineffective assistance of counsel.
U.S. v. Kwan, 407 F.3d 1005 (9th Cir. 2005).
Distinguished U.S. v. Fry where failure to advise “without
more” is not ineffective assistance.
• Notice – What “more” is “more”?
– On notice that client is not a citizen?
– Client tells you he is concerned about deportation?
– An immigration detainer is filed?
– Client reports having been visited by ICE officials?
IAC FLOOR RISING...
• New Mexico v. Pardez, 101 P.3d 799 (N.M., 2004).
– Affirmative duty to determine immigration status and
specifically advise of immigration consequences.
• U.S. v. Cuoto, 311 F.3d 179 (2nd Cir. 2002).
– Failure to inform client of deportation consequences
of plea may be objectively unreasonable.
• People v. Pozo, 746 P.2d 523 (Colo. 1987).
– Ineffective not to advise if attorney had reason to
believe immigration law would be relevant to the client
and the client’s legal problems
AND RISING...
• Segura v. State, 749 N.E.2d 496 (Ind. 2001).
– Failure to advise client of immigration consequences
of plea require conviction be vacated.
• Several state and federal cases.
– Failure to informed client of Judicial
Recommendations against deportation is IAC.
COUNSEL’S OBLIGATIONS –
COLLATERAL CONSEQUENCES
 Find out immigration status if applicable.
 Be aware of “other” consequences of conviction
including deportation.
 Be familiar with direct and collateral consequences of
sentence and judgment including deportation.
NLADA Performance Guidelines 2.2 (Initial Interview, 6.2
(Contents of Negotiations), 8.2 (Sentencing Options,
Consequences, and Procedures.
COUNSEL’S OBLIGATIONS –
COLLATERAL CONSEQUENCES
Affirmative duty:
Determine immigration status of
client.
Affirmative duty:
Specifically advise of how plea will
impact immigration status.
IAC:
Misrepresenting immigration
consequences.
IAC:
Failure to advise of deportation.
John Wesley Hall, Jr., Professional responsibility in
Criminal Defense Practice, § 10:27-28 (West, 2005).
IAC FLOOR
• To ensure pleas if voluntary, counsel must:
– Fully inform defendant of ramifications of plea.
– Fully investigate case, research law, file appropriate
motions.
– Discuss, more than briefly, charges and defenses
with client.
John Wesley Hall, Jr., Professional responsibility in
Criminal Defense Practice, § 10:27-28 (West, 2005).
A LAWYER SHOULD ASSIST IN
IMPROVING THE LEGAL SYSTEM
• “Fraudulent, deceptive, or otherwise illegal conduct by a
participant in a proceeding before a tribunal . . . Is
inconsistent with fair administration of justice, and it
should never be participated in or condoned by lawyers.”
ABA Model Code of Professional Responsibility, Canon 8,
EC 8-5.
A LAWYER SHOULD ASSIST IN
IMPROVING THE LEGAL SYSTEM
 “If a Lawyer believes that the existence . . . of a rule of
law, substantive or procedural, causes or contributes to
an unjust result, he should endeavor by lawful means to
obtain appropriate changes in the law. . . . [L]egal
procedures should be improved whenever experience
indicates change is needed.”
ABA Model Code of Professional Responsibility, Canon 8,
EC 8-2.
Padilla v. Kentucky
Padilla v. Kentucky: Facts
• Jose Padilla – 40-year lawful permanent resident and
Vietnam-era veteran
• Defense attorney misadvised that he would not be
deported if he pled guilty to marijuana trafficking
• Padilla pled guilty and faces mandatory deportation
because of his conviction (drug trafficking is an
aggravated felony under immigration law)
Padilla v. Kentucky, cont.
• Padilla moved to vacate his guilty plea, claiming his
attorney’s misadvice constituted ineffective assistance of
counsel
• Kentucky Supreme Court held that deportation is a
collateral consequence, and therefore failure to advise as
well affirmative misadvisal is outside the scope of the
Sixth Amendment right to counsel.
Padilla v. Kentucky:
Questions presented to Supreme Court
• Does the Sixth Amendment require a defense attorney to
investigate and advise client of deportation consequences
of a guilty plea?
• Does misadvising client about deportation consequences
constitute ineffective assistance of counsel under the Sixth
Amendment?
Deportation Basics
Immigration status
affects the criminal process
• Pre-trial release
• Plea bargaining
• Sentencing
• Conditions of post-conviction confinement
Possible immigration consequences of
criminal charges and convictions
• Deportation
• Detention – can be anywhere in country, can last weeks or
years
• Ineligibility for U.S. citizenship
• Ineligibility to adjust status (get green card)
• Inability to be readmitted to U.S. after trip abroad
• Any person who is not a U.S. citizen can be deported –
including lawful permanent residents and refugees.
• A broad range of offenses – even minor ones – can lead to
deportation.
• Some convictions lead to mandatory deportation – no
chance to remain in the U.S.
Lawful permanent residents
• LPRs can be deported for a wide range of
convictions. Red flags:
– Almost any drug offense – except one-time simple
possession of 30g or less of marijuana
– Aggravated felony – a long list of offenses that have to
be neither aggravated, nor felonies
– Firearm offense
– Crime involving moral turpitude
– Domestic violence, stalking
– Child abuse/abandonment/neglect
– Violating order of protection (civil or criminal finding)
Undocumented immigrants
• Deportable, regardless of outcome of criminal case
• But the criminal justice process may flag person for
deportation
• And outcome of criminal case can affect whether person
can apply for relief from deportation (e.g. get a green card
through citizen spouse). Some red flag offenses
(conviction or admission):
– Any drug offense
– Crime involving moral turpitude
– Prostitution
Criminal defense attorneys: first - and
sometimes last - line of deportation defense!
• Once a person has a final conviction, often, little can be
done in immigration court to mitigate its effect
• Often, simple strategies can make the difference between
mandatory deportation and a chance to remain in the U.S.
Realities of Immigration Advisements in
Indigent Defense Systems
Case volume
Limited funding
Specialized knowledge
More “serious” issues to worry about
Where to draw the line
Criminal Court to Immigration Court
ARREST
BOND?
CONVICTION
ICE Detainer
RELEASE
ICE Detainer
48 HOUR RULE
ICE CUSTODY
NTA
ICE BOND?
IMMG COURT
Criminal Law v. Immigration Law
•
There are different constitutional and statutory rights
for immigrants who are in the criminal justice system
than in the immigration law system:
1) Immigrants have more fundamental rights in the
criminal justice system
2) Immigrants have more due process guarantees in
the criminal justice system
3) Immigrants have more Constitutional protections in
the criminal justice system
Criminal Law v. Immigration Law:
Examples of Different Rights and Protections
Criminal Law
Immigration Law
• Constitutional right to an
attorney for the indigent.
Gideon v. Wainwright,
372 U.S. 335 (1963)
• Statutory right to a lawyer
only if client can afford to
pay. INA § 240(b)(4).
• Strong 4th, 5th, 6th, and 8th
Amendment rights
• Some constitutional and
statutory rights
Criminal Law v. Immigration Law:
Examples of Different Rights and Protections
Criminal Law
• No Ex Post Facto laws
Immigration Law
• Ex Post Facto laws apply
• Strict protection by the
Rules of Evidence
• Very loose application of
the Rules of Evidence
• No Double Jeopardy
• Limited Res Judicata right
• Usually a right to an
individual determination
of bond
• Access to Consulate
under the Vienna
Convention?
• Subject to denial of bond
based on broad categories
• Access to the Consulate
under the Vienna
Convention?
Mandatory Immigration Detention
• The Immigration and Nationality Act mandates that most
immigrants convicted of crimes will be subject to
mandatory detention during the course of their removal
proceedings. See INA § 236(c).
1) if mandatory detention is triggered, client will not be eligible to
bond out of immigration detention
2) claims for relief from removal can take anywhere for a few
months to years to complete
3) Even though an undocumented person or a lawful permanent
resident may have an ICE detainer in place, they are often eligible
to qualify for and post an immigration bond if they do not trigger the
mandatory detention provision.
Example #1: A Tale Of Two Defendants
Hans (undocumented):
Charge: Simple Assault bar fight
Offer: Plead guilty to M1 Assault,
knowingly causing injury
Results:
a) Crime of Moral Turpitude
b) Mandatory Detention
c) Criminal Inadmissibility
d) Destroys most defenses
Hans (undocumented):
Charge: Simple Assault bar fight
Offer: Plead guilty to M2 attempt
recklessly causing injury
Results:
• Not Crime of Moral Turpitude
• Not Mandatory Detention
• Not Criminal Inadmissibility
• Still eligible for defenses
A Tale Of Two Defendants
Charge – Misd
Charge – Sent AF
Consult – AF/DV
Plea & Sent
Nego Safe Plea
ICE arrest
Detention-CO
Immig Interview
AF removal
Lawful Perm
Resid
Example #2: A Tale Of Two Defendants
Hans (LPR):
Hans (LPR)
(green card since 2006)
(green card since 2006)
Charge: F6 PCS Cocaine
Charge: F6 PCS Cocaine
Offer: DJ/S stip probation
Offer: PG to M1 PCS Marijuana
less than 30 grams
Results:
a) Controlled Substance Off.
b) Mandatory Detention
c) Destroys some defenses?
Results:
• Not Cont. Substance Off.
• Not Mandatory Detention
• Not Deportable
Case Study
• Your client was born in Honduras.
• He is charged with the following offenses
in connection with an identity theft
scheme:
- Identity theft (felony, max sentence 5 years)
- Larceny (misdemeanor, max sentence 1 year)
- Trespass
What questions do you ask him?
Case Study, cont.
Basic questions to ask every non-citizen
client:
• Immigration status, date of getting status
• Date of coming to U.S.
• Any priors/full criminal history
• Immediate family members and their
status
Case Study, cont.
You ask the questions and get these
additional facts:
• Client is a lawful permanent resident
(LPR)
• Came to U.S. as LPR in 2003
• No priors
• Parents, Spouse and kids are all U.S.
citizens
Case Study, continued
Deportability red flags:
- Aggravated felony for theft (if 1-year
sentence)
- Aggravated felony for fraud (if loss to
victim is greater than $10,000)
- Crimes involving moral turpitude
Case study, cont.
Possible defense strategies (depend on exact elements of
criminal statute, but these are typical possibilities):
- If pleading to a theft offense, avoid a 1-year sentence
(364 days instead of 365)
- If pleading to offense requiring intent to defraud/deceive,
make clear that loss was not greater than $10,000
- Either offense could possibly be CIMT – but by itself,
would no make him deportable because he came to US
more than 5 years ago
- Perhaps trespass is safest option, even with a long
sentence and restitution?
- Consider going to trial
Components of a Defender
Immigration Service Plan
•
•
•
•
•
Advisal
Information Gathering
Staff Development
Language Access
Direct Immigration Service or Referral
(Protocol for the Development of a Public Defender Immigration
Service Plan by Immigrant Defense Project and New York
State Defenders Association)
NACDL Guidelines
• To refuse to engage in the defense of
these cases unless counsel is
competent in the area and is provided
adequate time and resources to allow
meaningful representation
• To learn how to defend particular charged
offense cases before undertaking the
representation of an individual charged
with the offense
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• Perform a sufficient investigation to
determine whether factual defenses are
available to these individuals in order to
provide full and informed advice on the
collateral consequences of entering into a
guilty plea.
• To insist upon privacy with the client
• The lawyer should either be bilingual (in
English and their client’s language) or
have qualified interpreters in the client’s
first language to assist counsel
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• Sufficiently investigate whether the client
has mental health, asylum or other issues.
• Consult directly with the client during
every critical phase of the case.
• Counsel should attempt to obtain a quick
trial in Operation Streamline cases to
avoid temptation to the client to make a
deal simply to get home more quickly.
• Contact the appropriate consulate to
obtain consular services for the client.
• Preserve any violation of the Geneva
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Convention on Consular Rights.
• Develop a sufficient psycho-social history,
obtain witnesses and other evidence in
order to provide strong representation at
sentencing.
• Appointed counsel must be paid in
compliance with the Criminal Justice Act.
• Counsel should insure adequate food,
health care and clothing for their clients
and arrange with the arresting and
detaining authorities for the return of client
property.
• Present special seminars to train counsel
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on how to handle these cases
• Seek dismissal of defensible cases and
the immediate return/release of those
persons whose cases are so dismissed
• Offices which deal with Operation
Streamline should keep accurate and full
statistical information to determine
whether the program is being applied in a
manner that discriminates against any
invidious group.
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Advisement Models
for Public Defender Offices
• In-House Model - immigration expert housed
in defender office
• Staff Split Model - immigration expert shared
between defender office and local
immigration organization
• Central Office Model - immigration expert(s)
housed at a central office and provides
advisals to local offices
Advisement Models
for Public Defender Offices, cont.
• Contract Model - defender office outsources
advisals to a separate (immigration)
organization
• Statewide Layered Model - statewide
immigration supervisor works with
immigration experts at larger defender offices
and defenders designated as immigration
liaisons at smaller offices and assigned
counsel programs
• (For full descriptions of models, see Protocol for the
Development of a Public Defender Immigration Service
Plan at www.immigrantdefenseproject.org)
Colorado Advisement Model
Criminal Immigration Analysis
• 1) What is the immigration narrative/history for client?
• 2) What are ALL of your client’s prior convictions?
3) Is your client in custody or on bond?
4) What are the charges, offer, tenor of DA/court, client
mitigation, strength of defense and negotiations room?