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The Immigration Battle Over Old Criminal Convictions

September 22, 2013

Putting Bite Back Into Padilla v. Kentucky: Cracking The Constitutional Code

Recently, the Massachusetts Supreme Judicial court held that all immigrants convicted of crimes since April 1, 1997 can seek to reverse those convictions.

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In order to prevail, immigrants must show their lawyers gave them bad advice about the impact a conviction would have on their immigration status.

At first blush, the Massachusetts effort seems like a fairy tale.

Just a few months ago, in Chaidez v. United States, the Supreme Court ruled such legal attacks were limited to cases after March 31, 2010.

The Dark Age Of Immigration Law

Why has the Massachusetts court focused on April 1, 1997?

On that day the Illegal Immigration Reform And Immigrant Responsibility Act Of 1996 (IIRAIRA), legislation which transformed immigration law, went into effect.

Immigrants convicted of crimes and sentenced to one year incarceration became subject to automatic deportation from the United States.

The new law expanded the list of offenses which lead to deportation charges – while it also eliminated immigrants’ chances to prove their worthiness for judicial forgiveness.

Worse, these changes applied retroactively. This meant immigrants could be removed from the United States, even though their offenses took place 10, 20, 30 years before the passage of IIRAIRA.

In other words, a far less-than-perfect law made nearly perfect moral character the criteria for assessing past behavior.

April 1, 1997, in my view as a deportation defense attorney, represents the codified beginning of the Immigration Dark Age.

Mean-spirited legislation . . .

  • Passed by a calloused Congress
  • Implemented by cold-blooded USCIS officers
  • Adjudicated by case-hardened immigration judges
  • Enforced by cruel ICE officers

. . . became the law.

The four housemen of immigration darkness were let loose, with few checks or balances, upon unsuspecting immigrant communities.

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The results of such political and legal perversity were predictable.

Thousands of families have been torn apart.

Little, if any, compassionate consideration has been given to the individual merits of immigrants facing removal or the personal circumstances of their families.

Yet, the majority of these families have been comprised of permanent resident and U.S. citizen children and spouses.

Almost two decades later, immigration lawyers and advocates are still trying to extricate their clients from the adverse effects of the Congressional war on the due process rights of immigrants.

The State Law Strategy For Post-Conviction Relief

One such right is the right to competent legal counsel.

According to the Massachusetts court, if immigrants can show their lawyer failed them, they may be able to have their convictions overturned.

This comports with the March 31, 2010 decision of the U.S. Supreme Court in Padilla v. Kentucky that criminal defense lawyers must warn their clients if deportation could be a consequence of a guilty plea

However, on another point, the Massachusetts Court’s position is in direct conflict with the U.S. Supreme Court.

Fearing the reach of Padilla, the government raised retroactivity concerns. How far back, they questioned, do Padilla protections extend?

Seeking to minimize the ruling, they appealed whether immigrant guilty pleas predating the Padilla ruling were covered under the Supreme Court’s decision.

On February 20, 2013, the Supreme Court answered.

In Chaidez, the court limited the scope of its Padilla ruling, holding it did not apply to immigrants whose convictions had become final by the date of that decision.

End of story.

Or so thought the four horsemen.

Because Chaidez addressed a federal court conviction, the decision does not, on the surface, prohibit constitutional claims based on flawed state convictions.

As the Boston Globe reported, the Massachusetts challenge invokes the Massachusetts Declaration of Rights, a state law.

According to Massachusetts Public Defender Wendy S. Wayne, “Under Article 12 of the Massachusetts Declaration of Rights, defense counsel has a duty to provide noncitizen defendants with accurate advice regarding the deportation consequences of pleading guilty or being convicted at trial and that this right also applies retroactively to cases on collateral review.’’

Standards For Vacating Criminal Convictions

What must an immigrant show to prevail under Padilla?

Material misrepresentation.

Affirmative misadvice.

Several criminal defense legal scholars assert that a Sixth Amendment challenge, based on erroneous advice, is not foreclosed by the Chaidez ruling.

They argue that Chaidez distinguished ineffective assistance of counsel claims from affirmative material misrepresentation claims.

“A lawyer violates the Sixth Amendment, said the Court in Chaidez, “when he affirmatively misrepresents his expertise or otherwise actively misleads his client on any important matter, however related to a criminal prosecution.”

Perhaps the easiest way to explain these legal concepts is to portray them in the context of prejudice.

To vacate a conviction under Padilla, the defendant must establish that he suffered prejudice from defense counsel’s failure to provide competent advice regarding the immigration consequences of proposed pleas before conceding to specific charges.

In other words, given proper advice, the immigrant defendant would have decided against pleading guilty.

A few aspects of competent advice include:

A Lawyer’s Duty To Inquire

At minimum, it seems the duty to inquire mandates that defense lawyers should ask clients about their citizenship and immigration status.

After all, the criminal consequences of convictions for citizens differ from the consequences for non-citizens.

In some instances, the consequences of a certain plea between lawful permanent residents and undocumented immigrants also differ.

How can a criminal attorney properly advise a non-citizen if he or she fails to inquire about immigration status?

The duty to inquire also leads to gathering information from the immigrant defendant about his or her specific immigration situation, such as length of residence, family and community ties, employment history, and medical/health conditions. When several hardship factors exist, most immigrants are not likely to accept a plea which undermines all chances to remain in the U.S. after the sentence is served.

A Lawyer’s Duty To Mitigate

What, exactly, does Padilla require criminal defense counsel to tell immigrants before they plead guilty?

It seems Padilla imposed an obligation on defense lawyers to seek outcomes, reasonably available, that reduce or eliminate immigration consequences of automatic removal from the United States.

To date, many state courts have relied on the use of boilerplate warning that immigration consequences may flow from a guilty plea.

Unfortunately, as a Riverside immigration attorney, I have seen the negative effects of such generalized admonishments. They should not be used to excuse the failure of defense counsel to either conduct independent research or seek expert advice regarding pleas to specific sentences.

Under a general advisory system, immigrants can be railroaded into pleading guilty based on a flawed or non-existent analysis of deportation consequences which “may flow” – when, in reality, the consequences are certain and imminent, and “shall flow” from such pleas.

After bumping heads with more than a few defense lawyers about their duty to immigrant defendants, it’s clear that a division exists among criminal defense attorneys.

There are some who refuse to assess cases involving immigrants any differently than those with citizen defendants. There are others who understand and take care to evaluate plea deals in vis-à-vis the expanding parameters of the government’s crimmigration deportation regulations.

Immigrants facing criminal charges must select a lawyer from the latter group.

Otherwise, they risk permanent separation as the result of incompetent plea bargaining.

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The “may flow” approach allows less scrupulous defense counsel to take the money and run, without doing any substantive analysis or engaging in adequate representation.

The Padilla ruling mandates defense counsel to negotiate plea bargains in light of immigration consequences and to adequately inform their immigrant clients of risks before they enter into guilty pleas.

The good news, for now, is the faint light of fair play in deportation cases has started to gain a little traction.

Hopefully, the Age of Immigration Enlightenment is nearing.

By, Immigration Law, Policy, And Politics

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