Vol. 83, No. 8, August 2010
In most cases, the biggest question in the mind of a criminal defendant is, “Am I going to jail, and if so, for how long?” The significance of this concern can change dramatically if the defendant is not a United States citizen. Because many criminal convictions also trigger serious immigration consequences, such as deportation, for the noncitizen the fear of permanent exile often outweighs concerns about incarceration.1
Despite this dynamic, until the U.S. Supreme Court’s recent landmark decision in Padilla v. Kentucky,2 criminal defense attorneys had no duty under the Sixth Amendment to advise their immigrant clients of the possibility of deportation. Padilla represents a dramatic expansion of defense counsel’s duty to advise noncitizen clients of the potential immigration consequences of their pleas, and it overturns Wisconsin and federal court cases that essentially allowed criminal defense counsel to avoid Sixth Amendment concerns by remaining silent on the issue.
Since 1990, the immigrant population has more than doubled in Wisconsin, and it is expected to increase.3 One study projects that Green Bay’s Hispanic population, which in 2006 was approximately 11 percent of the city’s total population, will grow to at least 17 percent of the total by 2017 and to nearly 30 percent of the total by 2032.4 This estimate “would make Green Bay a miniature version of contemporary Arizona, where nearly one-third of the population is Hispanic.”5 Although foreign nationals most likely have lower crime and incarceration rates than native-born U.S. citizens,6 the increase in Wisconsin’s immigrant population will invariably mean a higher percentage of noncitizen defendants in Wisconsin’s criminal justice system. It is therefore crucial that Wisconsin defense attorneys understand their Sixth Amendment duty under Padilla.
Wisconsin Law Before Padilla: No Immigration Advice Required
Before Padilla, Wisconsin law viewed the immigration effects of a plea as a collateral consequence.7 Accordingly, Wisconsin courts followed the rule of other jurisdictions that “counsel need not inform an alien defendant of the immigration consequences of a guilty plea.”8 However, Wisconsin courts had suggested that there might be a constitutional claim of ineffective assistance of counsel if an attorney incorrectly advised a defendant on immigration law.9 Under this precedent, Wisconsin attorneys could essentially avoid a constitutional violation by refraining from offering any immigration advice at all. Padilla unambiguously overturned Wisconsin law by rejecting the doctrine of collateral consequences in the immigration context and imposing an affirmative duty on counsel to advise a defendant on immigration effects of a plea.
Since 1986, Wisconsin courts have been required to warn any person pleading guilty or no contest of the possible immigration consequences of the plea. The judge must use the precise wording contained in Wis. Stat. section 971.08(1)(c) when personally addressing the defendant at the plea hearing.10 The Wisconsin Supreme Court made it clear that a court’s failure to use the exact statutory language permits a defendant to withdraw a plea under Wis. Stat. section 971.08(2) if it is later shown that the plea is likely to result in deportation, exclusion, or denial of naturalization.11
It is important to carefully distinguish Padilla, which pertains to the duty of defense counsel under the Sixth Amendment, from the court’s mandatory obligation under Wis. Stat. section 971.08(1)(c) to advise a defendant during the plea colloquy. The statutory warnings also appear on Wisconsin’s standardized plea questionnaire, and it is the practice of most criminal defense attorneys to read them to a client just before the plea hearing. However, because the warnings are very general and offer no insight into the immigration consequences for a particular defendant, it would be a serious mistake for defense counsel to conclude that merely reciting them after a plea bargain has been reached will fulfill the requirements under Padilla.
Erich C. Straub, Marquette 1994, is an immigration attorney concentrating in deportation defense and family and employment-based immigration. With nearly a decade’s experience in criminal defense, he also handles postconviction matters for immigrants and advises criminal defense attorneys on the immigration consequences of convictions. com erich straubimmigration straubimmigration erich com.
Davorin J. Odrcic, Notre Dame 2001, practices immigration law exclusively and focuses in deportation defense, family-based immigration, and postconviction relief in Wisconsin courts for noncitizen clients. com davorin straubimmigration straubimmigration davorin com.
The Padilla Decision: A Sixth Amendment Duty to Provide Accurate Immigration Advice
José Padilla is a citizen of Honduras who has lived in the United States as a lawful permanent resident for more than 40 years. In 2002, Padilla pleaded guilty to a drug-trafficking charge and was sentenced to a five-year prison term. Under immigration law, a conviction for illicit trafficking of a controlled substance guarantees a deportation order because it is considered an aggravated felony.12
Padilla claimed that he was unaware of this devastating immigration consequence when he entered his guilty plea. He sought to withdraw his plea based on his claim that his counsel not only failed to advise him that his plea would trigger automatic deportation but also told him that he “did not have to worry about immigration status since he had been in the country for so long.”13 The Kentucky Supreme Court rejected Padilla’s arguments, finding that a defense attorney’s failure to warn a client about the immigration consequences of the client’s plea, as well as affirmative misadvice regarding immigration, cannot constitute ineffective assistance of counsel under the Sixth Amendment.14
The U.S. Supreme Court held in a 7-2 decision that defense attorneys have a Sixth Amendment duty to warn their noncitizen clients of the potential immigration consequences of their pleas. The majority opinion, written by Justice Stevens, placed great emphasis on the history of removable criminal offenses, noting that until recently “there was no such creature as an automatically deportable offense.”15 Before 1990, sentencing judges in state and federal cases could recommend against the deportation of a defendant by using a procedure known as a judicial recommendation against deportation (JRAD).16 In addition to eliminating JRADs in 1990,17 Congress also enacted legislation in 1996 that not only limited discretionary relief in Immigration Court for noncitizens convicted of deportable offenses but also greatly expanded the number of deportable offenses that qualify as aggravated felonies.18
The majority decision in Padilla acknowledged that these “changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.”19 For that reason, the “importance of accurate legal advice for noncitizens accused of crimes has never been more important.”20 Because deportation and criminal convictions have become so intertwined, the Court also found it “uniquely difficult to classify [deportation] as either a direct or a collateral consequence [of a criminal conviction].”21
The Court examined Padilla’s claim of ineffective assistance of counsel under the two-prong test created by its prior decision in Strickland v. Washington. Under Strickland, a defendant claiming ineffective assistance of counsel must first establish that his or her counsel’s performance was deficient, involving “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”22 Second, the defendant “must show that that the deficient performance prejudiced the defense.”23 The Court found that under the first prong of Strickland pertaining to constitutional deficiency, the “weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”24With respect to the second prong, the Court declined to address whether Padilla had met his burden of demonstrating prejudice “because it was not passed on below.”25
The majority decision determined in the instant case that “the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction.”26 The majority thus held that in situations in which the immigration consequence of a plea is clear and straightforward, such as in Padilla’s case, a defense attorney has an affirmative duty to provide accurate advice regarding the deportation consequences. In cases in which “the law is not succinct and straightforward … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”27
Justice Alito’s concurrence rejected the majority opinion’s holding that a defense attorney must provide correct advice in cases in which the immigration consequence is succinct and straightforward. Given the complexities of immigration law, Justice Alito reasoned that a noncitizen’s Sixth Amendment right to effective counsel should be 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.”28
Determining If Immigration Consequences of Criminal Conduct are “Succinct and Straightforward”
Padilla is a highly commendable decision, because it takes a very significant step toward ensuring that immigrant defendants will enter pleas with the full knowledge and understanding of consequences that can be as devastating as deportation. But there is also validity in Justice Alito’s criticism of the majority for oversimplifying immigration law. Whether intended or not, the majority’s bifurcated approach creates a serious dilemma for defense attorneys: If defense counsel lacks expertise in immigration law, then how is he or she going to know whether an immigration consequence is “clear, succinct, and explicit”?29
Immigration Issues Headline Diversity Counsel Plenary Session in October
Immigration laws and issues affecting lawyers and noncitizen clients – such as green cards, visas, undocumented workers, and defense attorneys’ affirmative duty to provide advice on the potential immigration consequences of a client’s plea – are the subjects of one of four plenary sessions at the State Bar’s upcoming 2010 Diversity Counsel Program.
Additional plenary sessions will focus on legal issues surrounding gay marriage and same-sex relationships in Wisconsin and the United States; and race, gender, and sexual orientation discrimination in the practice of law. A presentation featuring Bill Proudman, a national diversity consultant and principal with White Men as Full Diversity Partners, on the role of white men in diversity and inclusion, follows the networking luncheon.
Mark your calendars now to attend the State Bar 2010 Diversity Counsel Program, Oct. 1, 8 a.m. - 2:30 p.m., at the Italian Community Center in Milwaukee.
The Supreme Court does not provide much guidance on this critical issue. The majority suggested that defense counsel need only review the plain language of the applicable removal statute to determine whether there is a clear and unambiguous immigration consequence.30 But as lawyers in any area of practice will admit, statutes often defy the best efforts of lawmakers, bureaucrats, and courts to make them clear and unambiguous.
Immigration law is no exception, and an accurate and complete analysis of the immigration consequences of a pending charge requires much more than a cursory review of a statute. Unfortunately, immigration law is very complex, and there are many hidden traps for the unwary criminal defense practitioner. Defense counsel might assume that there is a black and white list of specific crimes that carry immigration consequences. But providing correct immigration advice is much more nuanced than referring to a list of crimes. It normally includes the following analysis:
1) Determine Client’s Immigration Status. Under the Fourteenth Amendment, a person born in the United States is a citizen regardless of the citizenship of that individual’s parents.31 But birth in the United States is not the only way to obtain citizenship. A person also may acquire citizenship derivatively or obtain citizenship through naturalization.32
Lawful permanent residents like Padilla can live and work indefinitely in the United States unless they are ordered removed or they abandon permanent residency. There also are foreign nationals on temporary “nonimmigrant” visas and noncitizens who entered the United States as refugees or were granted asylum. A substantial number of individuals lack immigration status altogether.
Criminal defense attorneys should not assume that a person who is on a temporary visa or who lacks status will not suffer any immigration consequences of a particular plea. Even a foreign national with no immigration status may adjust his or her status to lawful permanent residency or obtain a green card at a U.S. consulate abroad. Certain convictions can render a noncitizen ineligible for lawful permanent residency and can therefore be just as devastating as Padilla’s plea to a mandatory deportable offense.
2) Investigate Client’s Criminal History. Frequently, noncitizens assume that only their current criminal charges can affect them. This assumption is usually based on a mistaken belief that, if it were possible to do so, the government would have already deported them for past criminal conduct. It is not uncommon for the government to take years, or even decades, to discover that an individual is deportable, particularly if the crime occurred before Sept. 11, 2001, or did not result in a prison sentence.
In some instances, a client may already be deportable irrespective of the ultimate disposition of pending charges. Past criminal conduct also can affect whether a pending charge could result in deportation. For example, one provision under immigration law renders deportable a noncitizen who has been convicted of two or more crimes involving moral turpitude that do not arise out of a single scheme of criminal misconduct.33 A defense attorney may not know whether this provision will be triggered without first analyzing a client’s entire conviction record.
3) Understand that Common Legal Terms May Have Different Meanings Under Immigration Law. Although immigration law and criminal law share common terms, many terms have different meanings, often counterintuitive. For example, most defense attorneys understand what constitutes a felony or a misdemeanor under Wisconsin law – the definition is clear under Wis. Stat. sections 939.50 and 939.51 and the terms are mutually exclusive. Under immigration law, however, a misdemeanor actually can be considered a felony. In Wisconsin, a common example is when a defendant is charged with second-degree sexual assault of a child under Wis. Stat. section 948.02(2) for having consensual sex with a teenage girlfriend or boyfriend. This felony charge can be amended to misdemeanor fourth-degree sexual assault under Wis. Stat. section 940.225(3m). A guilty plea to the misdemeanor charge will still be considered an aggravated felony for immigration purposes as “sexual abuse of a minor” if it is clear from the record of conviction that the defendant had sex with a minor.34
Another common mistake involves the definition of conviction under 8 U.S.C. § 1101(a)(48)(A), which is broader than what is considered a conviction under Wisconsin law. The immigration definition of conviction includes a plea of guilty or no contest or an admission of sufficient facts to warrant a finding of guilty, irrespective of whether the court has withheld judgment. This distinction frequently comes into play when a deferred prosecution agreement is offered, but the defendant is required to enter a plea of guilty or no contest to the original charge as part of the agreement. Under immigration law, the defendant is considered convicted of the original charge regardless of full compliance with the agreement and later dismissal of the charge by the court.35 For the same reason, an expungement under Wis. Stat. section 973.015 does not ameliorate the immigration consequences resulting from the original plea.36
4) Categorize Each Crime Under Immigration Law. Crimes that result in deportation may be conduct-specific and include drug-related convictions, firearms offenses, domestic violence, and child abuse.37 There also are broad categories of deportable crimes defined by generic labels such as a “crime involving moral turpitude” or “aggravated felony.” The term crime involving moral turpitude (CIMT) is an example of an immigration term that is anything but straightforward. There is no statutory definition of a CIMT, and it has been defined loosely as a crime requiring “evil” intent or “conduct that is inherently base, vile, or depraved.”38 Moral turpitude itself has been described as a “nebulous concept”39 and has been criticized as the “quintessential example of an ambiguous phrase”40 that “defies a precise definition.”41
Even if it is possible to give a concise definition of a CIMT, doing so is certainly beyond the scope of this article. However, there are some common characteristics that can help criminal defense counsel begin to grasp this challenging term. There is a misconception in the criminal justice system that only a felony conviction has immigration consequences, but the reality is that both misdemeanors and felonies can be categorized as CIMTs. Paradoxically, a particular felony might not be a CIMT, while a relatively minor crime such as shoplifting triggers the designation.42 Because a CIMT requires evil intent, the focus of any analysis always begins with the mens rea required to commit the crime. An offense with a knowing or intentional mens rea is usually considered a CIMT, while a crime with a negligent mens rea is not.43 A regulatory criminal offense with no mens rea also is ordinarily not considered a CIMT.44 An offense with a reckless mens rea may or may not be a CIMT, often depending on the degree of harm resulting from the crime.45 Given such broad parameters, CIMT jurisprudence can vary widely depending on the particular federal circuit and state case law defining elements of the conviction.
In contrast to its approach to CIMTs, Congress expressly defined the term aggravated felony under 8 U.S.C. § 1101(a)(43). The definition, however, contains 21 separate lengthy subsections that distinguish among factors such as the nature of the offense and the term of imprisonment imposed. As Justice Alito’s concurrence correctly acknowledged, whether a particular crime is an aggravated felony is not often “easily ascertainable.”46 Similar to a CIMT, the definition of aggravated felony has a complex jurisprudence that may vary based on the federal and state case law of the jurisdictions involved.
5) Analyze if Each Crime Results in Deportation and Inadmissibility. With a criminal conviction, there are generally two possible immigration consequences for a noncitizen defendant: deportation under 8 U.S.C. § 1227(a)(2) and inadmissibility under 8 U.S.C. § 1182(a)(2).47 Generally, the government applies the grounds of deportation to a noncitizen who is already present in the United States and was lawfully admitted. The grounds of inadmissibility are normally applied to a noncitizen who is seeking admission on a visa or who is applying for lawful permanent residence. Inadmissibility also can apply if a permanent resident has been convicted of a crime and subsequently attempts to reenter the U.S. after traveling abroad.48 Any immigration analysis must account for both deportation and inadmissibility because both can result in removal from the United States or the inability to obtain a future visa. Such an analysis is further complicated because the types of convictions that trigger deportation and inadmissibility, while similar, are not the same. While certain convictions will render a noncitizen deportable and inadmissible, other convictions will only trigger one of these sections.
The facts of Padilla provide a good example of how the same criminal conviction can lead to very different immigration consequences depending on whether a ground of deportation or a ground of inadmissibility is applied. If Padilla’s criminal defense attorney had been able to obtain an amendment to a single count of simple possession of 30 grams of marijuana, Padilla would have avoided deportation under 8 U.S.C. § 1227(a)(2)(B). However, if Padilla had traveled outside the United States and reentered the United States with the very same conviction, he would be inadmissible and placed into removal proceedings under 8 U.S.C. § 1182(a)(2)(A)(i)(II).49
6) Determine Client’s Eligibility for Relief in Immigration Court. Even if criminal defense counsel cannot obtain a disposition that avoids initiation of removal proceedings, the client may still avoid removal in Immigration Court. A noncitizen may be eligible for discretionary relief even though an immigration judge initially finds the noncitizen inadmissible or deportable. It is imperative for criminal defense counsel to have a clear understanding of a client’s eligibility for relief before any plea is entered, because certain convictions will disqualify the client from relief altogether. For example, the main form of relief for a lawful permanent resident is cancellation of removal. One of the requirements for cancellation is that the permanent resident must not have been convicted of an aggravated felony.50 Because an aggravated felony will trigger deportation and disqualify a permanent resident from cancellation, it must be avoided. If defense counsel is successful in negotiating a disposition that results in two CIMT convictions rather than an aggravated felony, a permanent resident may still be placed in removal proceedings but could preserve eligibility for cancellation of removal.
Padilla Practice Advisory: Avoiding Ineffective Assistance Claims
Padilla is a groundbreaking decision, and given the complexity of immigration law, it may be many years before its full impact is understood. But for the present, criminal defense attorneys can take the following steps to better represent their immigrant clients and avoid Padilla ineffective-assistance claims:
1) Screen All Clients for Immigration Status. The first step in rendering immigration advice is to determine if it is needed at all. After Padilla, it is absolutely essential that criminal defense attorneys ask every client whether he or she is a U.S. citizen. Do not make assumptions based on appearance. Start by asking “Where were you born?” This question alone may not be sufficient because citizenship is not only conferred at birth but also can be derived or acquired under a complex set of laws. For this reason, the birth place and immigration history of a client’s parents and grandparents also may be relevant.51
Defense attorneys may mistakenly assume that there are only two classes of noncitizens: permanent residents and undocumented individuals. In reality, there is an alphabet soup of different immigration classifications, and criminal conduct can have different effects depending on the precise type of visa. For this reason, defense counsel should get as much information and documentation as possible concerning the immigration history of the client and the client’s family.
2) Define Scope of Representation in Writing. Clearly, Padilla does not permit a criminal defense attorney to discharge his or her Sixth Amendment duty to advise a client on immigration consequences simply by limiting the scope of representation in a fee agreement. However, scope of representation is likely to become an important issue as debate ignites concerning which immigration consequences are “succinct and straightforward” and which are not. A scope-of-representation clause in a fee agreement can serve several useful purposes. First, it memorializes an attorney’s understanding of the obligations under Padilla and the limits of his or her competence in immigration law. Second, it puts the client on notice of these issues. Finally, it is an excellent way to impress on the client the seriousness of the issue, particularly when there is a need to expend additional resources on immigration counsel.
3) Seek Professional Assistance in Immigration Law. While it is possible that Padilla will generate an increase in the number of attorneys who are equally competent in both criminal law and immigration law, the complexity of both disciplines makes it more likely that private criminal defense attorneys and public defenders will require assistance from experienced immigration attorneys. It simply is not possible in this article to educate criminal defense attorneys about all the immigration risks for clients. As noted by Justice Alito, it will be unrealistic in many instances for a defense attorney to advise his or her client of immigration consequences.52 Therefore, defense counsel should seek advice of an immigration attorney.
4) Document All Immigration Advice Given. It may seem obvious, but all immigration advice given to a defendant should be documented. If an immigration attorney is retained as a consultant, criminal defense counsel should insist that the consultation be put in writing for two reasons. First, a written analysis assists the defense attorney and client in understanding an often bewildering area of the law. Second, it prevents later disputes about whether a criminal defense attorney accurately communicated the advice of the immigration attorney to the client. As Padilla encourages, immigration consequences are likely to become a common consideration in plea negotiations. Because of the fluid nature of such negotiations, criminal defense counsel must be aware that the immigration consequences will need to be reanalyzed with each counteroffer. For the sake of both the client and counsel, every analysis should be documented.
By placing a Sixth Amendment duty on defense counsel to advise noncitizen clients regarding potential immigration consequences, the Padilla decision will dramatically alter the representation of immigrant defendants. The Court strongly implied that its decision also is retroactive because “professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.”53 Because Padilla is likely to be applied retroactively, Wisconsin criminal defense attorneys should anticipate the decision being used as a basis to vacate previous convictions under the Strickland test.
Padilla also may have implications beyond the immigration context. Despite the majority opinion’s emphasis on the “unique nature of deportation”54 in arriving at its decision, it is certainly possible that defendants will try to extend Padilla to nonimmigration consequences, such as pleas that unwittingly result in denial of occupational licenses, loss of public benefits, or civil commitment.55 Whether or not future litigation is successful in expanding a defense counsel’s Sixth Amendment duty to advise defendants regarding other indirect consequences, it is good practice to inform all defendants of all potential collateral consequences before the plea colloquy.56
Although Padilla places a greater responsibility on criminal defense attorneys, it should not be viewed as an undue burden. Deportation can result in permanent separation from family members, a loss of a career, or even persecution in the defendant’s country of origin. Because the stakes could not be any higher for the noncitizen client, defense counsel should use Padilla during plea negotiations. In fact, the Court sent a strong signal to prosecutors that immigration consequences should be taken into account during plea negotiations by concluding that “informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process.”57 In many instances, a plea arrangement that avoids or minimizes severe immigration consequences will be in the interest of justice for both the noncitizen defendant and the prosecution.