This decision may impact the curriculum at U.S. law schools, where immigration law is ordinarily viewed as an arcane academic backwater, offered as an elective, and perhaps not available every semester. Now it would behoove every urban criminal defense practitioner to have a working knowledge of immigration law, lest this abstract new development of ineffective assistance of counsel doctrine ripen into more tangible legal malpractice claims.
Criminal Defense Lawyers Weigh in on New Requirements
By Sylvia Hsieh, Staff Writer
Criminal defense lawyers are weighing in on Wednesday’s Supreme Court decision, which held that they must inform non-citizen clients about the risk of deportation when taking a plea deal.
Such notification is a constitutional requirement for effective assistance of counsel pursuant to the Sixth Amendment, the Court said.
Many lawyers welcomed the ruling, saying it resolved an issue plaguing many criminal cases.
“It impacts so many of our clients. … Clearly the immigration consequences are enormous, sometimes even more serious than the criminal consequences,” said Tova Indritz, a criminal defense attorney in Albuquerque, N.M. and an expert on the intersection of criminal and immigration law.
“It’s an historic decision, because prior to [it] almost every lower court said the Sixth Amendment doesn’t require competent advice on deportation consequences,” said winning attorney Stephen B. Kinnaird, an appellate litigator and partner at Paul Hastings in Washington, D.C.
(Earlier in the week, an appeals court in Maryland refused to overturn a plea by a Latvian national who was not warned by his lawyer about the risk of deportation.)
Immigration attorneys also applauded the ruling.
“Immigration consequences of a plea are part and parcel of the [criminal] defense. It’s high time it be recognized,” said David W. Leopold, a Cleveland immigration attorney and president-elect of the American Immigration Lawyers Association.
He predicted that cases where a defendant has already taken a plea and faces deportation because he or she wasn’t warned about the risks may be reopened as a result of this decision, including two recent queries that came through his office involving federal pleas.
“They will have to be re-advised,” Leopold said.
The case before the justices involved a lawful permanent resident of 40 years and Vietnam War veteran who faced deportation to Hondurus, where he was born, after he pled guilty to a drug charge.
His attorney had told him he “did not have to worry about immigration status because he had been in the country so long.”
The Kentucky Supreme Court denied post conviction relief, finding that the risk of deportation was merely “collateral” to the criminal conviction.
But the Supreme Court said that recent changes in the immigration laws that broaden the class of deportable crimes and take away a judge’s discretion in deportation decisions have “dramatically raised the stakes” of a noncitizen’s criminal conviction and put it “within the ambit” of the Sixth Amendment right to competent counsel.
“The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes 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,” wrote Justice John Paul Stevens for the majority.
“It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the ‘mercies of incompetent counsel.’ To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,” the Court said.
However, the Court noted that while in this case the attorney could have easily looked at the statute and found that nearly all drug crimes require mandatory deportation, in cases where the deportation consequences are “unclear or uncertain,” 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.”
Some 28 states already have a requirement that a criminal defendant be warned generally of immigration consequences, often by the judge during the plea colloquy, said Indritz.
The ruling now applies to criminal cases in every state, as well as in federal cases, which did not have a rule about warning defendants of immigration consequences, she added.
Kinnaird predicted that federal prosecutors will make it explicit in plea agreements that a plea may carry immigration consequences “so their pleas aren’t at risk.”
‘White, pink or green’
For some lawyers, the new obligations may require a wholesale rethinking from the moment a client walks in the door.
“We have to get over our stereotypes. I don’t care if you’re white, pink or green, right after I ask your name, my next question is, ‘Where were you born?’ said Indritz.
Given the complicated maze of this area of law, experts suggest that criminal defense lawyers get up to speed on immigration law or work with an immigration lawyer.
“This requires that in every case, a criminal defense lawyer ask the client what his citizenship status is, then keep in mind if you’re pleading to something that [makes your client] removable,” said John Wesley Hall, immediate past president of NACDL, who practices in Little Rock, Ark.
In some cases, knowing about the immigration risks and then renegotiating a plea deal can keep your client from being banished. For example, a client could plead to a lesser crime in exchange for actual jail time, or a prosecutor could agree to reduce a sentence from one year to 364 days, thereby taking a crime out of the “aggravated felony” category for purposes of deportation.
But the calculus depends on a dizzying variety of factors, and jurisdictions are split on some definitions of what makes a crime deportable. In addition, a plea can carry a panoply of risks aside from deportation, including the risk of not being allowed back in the U.S. if a defendant travels abroad or the risk of ineligibility for citizenship.
“It’s an absolute minefield. A criminal defense lawyer is well-advised to give a detailed analysis to her client prior to engaging in a decision to take a plea or go to trial,” said Leopold.
Experienced criminal defense attorneys will get advice from an immigration specialist before a client pleads to a crime, said Ira Kurzban, an immigration attorney at Kurzban, Kurzban, Kurzban, Weinger & Tetzeli in Miami.
More ‘collateral consequences’ to come?
The ruling could lead to a further expansion of the Sixth Amendment right to the effective assistance of counsel.
“It’s a transformative decision and at least opens the door for further decisions on whether any other collateral consequences are also within the Sixth Amendment,” said Kinnaird, who argued the case for the defendant.
The biggest example would be the consequences for a defendant pleading guilty to a crime requiring registration as a sex offender; lesser examples include losing the right to serve on a jury or the right to carry a firearm as the result of a plea.
“Those are all questions for the future,” Kinnaird said.