You Just THOUGHT You Didn't Need to Take Immigration in Law School

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
LawyersUSA

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.

‘Raised stakes’

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.

Convict Can Stay Because His Criminal Defense Lawyer Failed to Tell Him That Felons Can Be Deported

If this decision is applicable retroactively, expect a flood of "ineffective assistance of counsel" appeals, perhaps filed by immigration attorneys who otherwise try to stay out of court, not to mention appellate courts. As a practical matter, the USCIS won't contest them all. Somebody will make a phone call or send a memo down, and the deportations of convicted felons will be quietly dropped.

Supreme Court Says Lawyers Must Tell Immigrant Clients of Deportation Risk
By Robert Barnes
Washington Post Staff Writer

Lawyers must advise their immigrant clients facing criminal charges that pleading guilty could lead to deportation, the Supreme Court decided Tuesday.

The court ruled 7 to 2 that the Sixth Amendment guarantee of an effective counsel extends to advice about the risk of having to leave the country.

"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," Justice John Paul Stevens wrote.

Stevens said the responsibilities for lawyers are heightened because of congressional crackdowns on immigrants who commit crimes, even relatively minor ones. "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," he wrote.

The case before the court involved California truck driver José Padilla, who was considering whether to plead guilty to trafficking in marijuana. Before agreeing to the plea, he asked his lawyer whether it would affect his status as a legal permanent resident.

Padilla, a native of Honduras, had been in the United States almost 40 years and had served in the Army during the Vietnam War. (He shares a name with, but is not related to, the onetime "enemy combatant" convicted on terrorism charges.) He said his lawyer told him that he did not have to worry about his immigration status because he had been in the country so long.

So Padilla pleaded guilty -- and found out that his lawyer was wrong. Padilla's plea to an aggravated felony left him virtually no defense to deportation once his jail term ended.

On appeal, Padilla argued that his lawyer's bad advice deprived him of the constitutional right to effective counsel and that he should be able to withdraw the plea. The Supreme Court in Kentucky -- where Padilla was arrested -- said a lawyer is required only to advise his or her client about the direct consequences of a guilty plea and not collateral issues, such as how it would affect immigration status.

Tuesday's court majority said that was wrong. "When the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear," Stevens wrote.

Justice Samuel A. Alito Jr. agreed with the outcome of the case but said the majority went too far in extending the Sixth Amendment and what it requires of lawyers. Because immigration law is so complex, Alito said, it is enough for a lawyer to refrain from providing incorrect information and then advise a client to consult an immigration lawyer about the consequences of a guilty plea. Chief Justice John G. Roberts Jr. agreed with Alito.

Justices Antonin Scalia and Clarence Thomas dissented, saying the opinion was "overkill."

"In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised," Scalia wrote. "The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world."

Padilla, who has been living in California while awaiting the outcome of his legal challenges, now returns to the Kentucky Supreme Court to argue that his lawyer's bad advice means he should be able to withdraw his plea.

The case is Padilla v. Kentucky.

Deportation for Misdemeanor Criminal Recidivism Appears to Divide Supreme Court Along Familiar Ideological Faultlines

Kimberly Atkins' article doesn't mention any comments or questions from Justice Sonia Sotomayor, the sole Hispanic on the Court, but I would be surprised if she votes for deportation of the Hispanic criminal. If the typical pattern holds, Alito, Roberts and Thomas will join Scalia and Kennedy to prevail 5-4 over Breyer, Ginsburg, Sotomayor and Stevens.

Court considers if two misdemeanors equal a felony
By Kimberly Atkins
Staff writer

WASHINGTON - The U.S. Supreme Court took up a case Wednesday that considers whether a person who was convicted of two misdemeanors - therefore qualifying for, but never charged with, a felony enhancement - is guilty of an “aggravated felony” under immigration law.

The case, Carachuri-Rosendo v. Holder, involves Jose Angel Carachuri-Rosendo, a permanent U.S. resident from Mexico who pleaded guilty to possession of a marijuana joint - a misdemeanor - in 2004. In 2005 he pleaded guilty to illegal possession of one Xanax tablet without a prescription - another misdemeanor.

Although he could have been prosecuted under a recidivism statute that would have elevated the second charge to a felony, the prosecutor chose not to seek an enhancement.

Carachuri-Rosendo then received notice of removal proceedings. At a hearing, an immigration law judge held that he was subject to deportation. The judge reasoned that the second conviction qualified as an “aggravated felony” under the Immigration and Nationality Act because it could have justified a felony sentence under the Controlled Substances Act. (The INA authorizes deportation for anyone convicted of a crime “punishable” under the CSA.)

Carachuri-Rosendo appealed to the Board of Immigration Appeals and ultimately to the 5th Circuit, which both affirmed.

The Supreme Court granted certiorari in the case.

What is ‘punishable’?

Sri Srinivasan, a partner in the Washington office of O’Melveny & Myers, argued that the “aggravated felony” trigger should not have come into play absent a court ruling on recidivism.

“At the very least [the defendant] would have had to have been found to be a recidivist under a state provision that attaches sentencing consequences to being found to have been a recidivist,” Srinivasan argued.

“But this was ‘punishable‘ as a felony because it was his second drug offense,” Justice Antonin Scalia said, referring to the language of the INA. “He was a recidivist. And although it was only a misdemeanor under state law, under the Controlled Substances Act he could be prosecuted for a felony.”

“But he has to have been convicted of the felony,” Srinivasan replied. “That is the critical distinction.”

Scalia said a conviction wasn’t necessary under the text of the law.

“The critical language is ‘punishable,’” Scalia said, emphasizing every syllable of the word. “The truth is, he could be punished for a felony.”

“He has to be convicted of a felony,” Srinivasan asserted. “In absence of that finding he hasn’t been convicted of an ‘aggravated felony.’”

Justice Anthony Kennedy pointed out that five states have no recidivism statutes at all, so there could be uneven results.

“If you have one of those states with no recidivist provisions and you have ten separate possession convictions, [the defendant is] still not a recidivist under the federal rules,” Kennedy observed.

“That doesn’t mean that those prior convictions don’t enter into the picture at all,” Srinivasan said, noting that federal authorities can take those convictions into account when considering removal actions.

Felony to have ‘one Xan-something pill’?

Nicole A. Saharsky, assistant to the solicitor general, argued on the government’s behalf that state court action is not the determinate factor in deciding who is an aggravated felon under federal law.

“Congress’s judgment here was that all aliens who engage in the same serious conduct would be treated the same for immigration purposes,” Saharsky said. “What [the defendant] is saying is: ‘I don’t want my aggravated felony to count because of the difference in state law.’”

Justice Ruth Bader Ginsburg wondered if the punishment fit the crimes.

“If you could just present this scenario to an intelligent person who didn’t go to law school, that you are going to not only remove him from this country, but say never, ever darken our doors again because of one marijuana cigarette and one Xan-something pill - it just seems to me that if there is a way of reading the statute that would not lead to that absurd result, you would want to read the statute” that way, Ginsburg said.

Saharsky said the result is the one Congress intended.

“What controls is Congress’s judgment, and Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens,” Saharsky said.

Justice Stephen Breyer, using a hypothetical of a gentle “pussycat burglar” armed only with a pillow, said that the case illustrates the same practical problem present in cases involving other sentence-boosting statutes, such as the Armed Career Criminal Act: people committing relatively minor crimes facing dire consequences based on unclear state and federal laws.

Breyer said he feared a ruling in the government’s favor could “get [a] very mixed up area of the law which we have tried to straighten out [o]nce again totally mixed up. That’s my concern.”

A decision is expected by this summer.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com
© Copyright 2010 Lawyers USA. All Rights Reserved.

Scofflaw Criminals Released from U.S. Prisons Because They're Wretched Refuse

Prosecutor Ames Holbrook has written a book, reviewed on the ANCIR website by immigration activist Michael Cutler, about his frustration in trying to deport violent criminals who are illegal aliens. I hope this won't be mistaken for a slur against all immigrants. In fact, the primary victims of immigrant criminals are their own countrymen, and the first beneficiaries of aggressive deportation would be the hard-working, law-abiding immigrants who would be left in peace.

The Deporter
by Ames Holbrook
reviewed by Michael Cutler

America's immigration system is obviously broken, but to get a sense for just how dysfunctional it really is, scan the pages of Ames Holbrook's “The Deporter." This first-person account of the four years Holbrook spent working to deport criminal aliens from the United States is as hair-raising as it is distressing.

Take Holbrook's description of his encounter with an illegal alien named “Rodolfo," a career criminal “with eight felony convictions, burglary to battery, and a sex assault thrown in." Holbrook walked him out of jail but instead of throwing him out of the country, he had to release him free and clear. Why? Because he falsely claimed he was from Cuba.

There is a short list of countries - in Holbrook's terminology the “Big Four" - that do not take back their criminal citizens: Cuba, Vietnam, Laos and Cambodia. If the country will not issue travel documents for its citizens to return home, there is nothing deportation officers can do to get these criminals out of the United States. Holbrook explains that many criminals know the system well enough to know how not to get deported. Rodolfo, who was most likely a Mexican, knew that if he admitted his true nationality he'd be deported back home. So he claimed to be Cuban and without any document to prove otherwise (which is why illegals are offically known as undocumented aliens), he couldn't be deported.

What makes things even worse is that because of a 2001 Supreme Court decision, the immigration authorities can no longer indefinitely detain criminal aliens from countries that will not take them back. So when a criminal alien is finished serving his jail term, deportation officers like Holbrook are forced to release them back among the rest of us.

In another case, Holbrook had to inform a Vietnamese woman called Jacqueline that the violent felon who attacked her was being released from custody. Since his native country, Laos, wouldn't take him back, and the courts ruled he couldn't be held indefinitely, he had to be let go. Holbrook says he is haunted by her cries of anguish.

As a former immigration agent, I can sympathize with Holbrook's predicament. But some of his descriptions of breaking rules and resorting to deceitful tactics just to get criminal aliens deported - like lying about the crimes for which the alien was convicted so that the foreign country will be forced to accept their citizen - are worrisome to say the least.

This is a story for anyone who is concerned about how the failure to secure this country's borders imperils our safety and our nation's security. But it's only one story. Frighteningly, each of the other components of the immigration system is just as dysfunctional as the deportation branch described here.

2d Circuit: Ineffective Assistance Can Constitute "Exceptional Circumstances"

The Second Circuit Court of Appeals has blasted the immigration bar in Garfield Aris v. Michael Mukasey, a recent case alleging ineffective assistance of counsel, decided Feb. 20.

With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country. We have previously indicated that ineffective assistance of counsel can constitute an “exceptional circumstance” warranting the reopening of a deportation order entered in absentia. See Twum v. INS, 411 F.3d 54, 59 n.4 (2d Cir. 2005).

We write today to establish what we would have thought self-evident: A lawyer who misadvises his client concerning the date of an immigration hearing and then fails to inform the client of the deportation order entered in absentia (or the ramifications thereof) has provided ineffective assistance. We further clarify that such misadvice may constitute ineffective assistance of counsel even where it is supplied by a paralegal providing scheduling information on behalf of a lawyer.

Under the (Immigration & Naturalization Act), an alien ordered deported in absentia may reopen the case by filing a motion within 180 days after the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances.

(The Act) defines exceptional circumstances as “circumstances such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien.”

We now join our sister circuits in concluding that, under BIA precedent applicable to the pre-1996 version of the INA as well as its current iteration, a lawyer’s inaccurate advice to his client concerning an immigration hearing date can constitute “exceptional circumstances” excusing the alien’s failure to appear at a deportation hearing...and meriting the reopening of an in absentia deportation order.

The importance of quality representation is especially acute to immigrants, a vulnerable population who come to this country searching for a better life, and who often arrive unfamiliar with our language and culture, in economic deprivation and in fear. In immigration matters, so much is at stake -- the right to remain in this country, to reunite a family, or to work. While binding Second Circuit precedent holds that aliens in deportation proceedings have “no specific right to counsel,” the Fifth Amendment does require that such proceedings comport with due process of the law.

...given the disturbing pattern of ineffectiveness evidenced in the record in this case(and, with alarming frequency, in other immigration cases before us), we reiterate that due process concerns may arise when retained counsel provides representation in an immigration proceeding that falls so far short of professional duties as to “impinge upon the fundamental fairness of the hearing.”

The Court goes on to lecture immigration attorneys on the fundamentals of their obligation to provide competent services, and to make prompt disclosure of lapses.

Members of the bar enjoy a monopoly on legal practice, a professionalized system designed in large part around [their] needs. And for that reason, among others, lawyers have a duty to render competent services to their clients.

When lawyers representing immigrants fail to live up to their professional obligations, it is all too often the immigrants they represent who suffer the consequences.

We appreciate that, unfortunately, calendar mishaps will from time to time occur. But the failure to communicate such mistakes, once discovered, to the client, and to take all necessary steps to correct them is more than regrettable -- it is unacceptable. It is nondisclosure that turns the ineffective assistance of a mere scheduling error into more serious malpractice.

(This deportee's) prior attorneys failed spectacularly to honor their professional obligation to him and to the legal system they were duty-bound to serve. Governmental authorities, whatever their roles, must be attentive to such lapses that so grievously undermine the administration of justice.