On Deportation and Duty

immigrants

Yesterday, the Supreme Court ruled that defense lawyers must advise their immigrant clients that, if they plead guilty, they could get deported. (Read the opinion here, and you can read more about the case here and here.) In a nutshell, Jose Padilla took a plea to selling drugs, and his lawyer told him not to worry about deportation since he’d been a lawful permanent resident for 40 years. That was erroneous advice. Kentucky wouldn’t let Padilla get his plea back, saying this error was about a collateral consequence outside the criminal justice system, so it wasn’t ineffective assistance for Sixth Amendment purposes. The Supreme Court disagreed, saying it absolutely was ineffective assistance. Defense lawyers are duty-bound, as a constitutional matter, to let clients know that pleading guilty could get them deported.

Note that this burden is on the defense counsel, and not on the court. The court does have to advise defendants that they’re giving up their right to a jury trial and all the other things they’re foregoing, but the court doesn’t have to warn about “collateral” consequences of the plea. And deportation is one of a myriad of potential collateral consequences, including losing a driver’s license, or the right to vote, or the ability to hold a particular job, or government benefits. (There are entire books dedicated to listing and describing all the collateral consequences out there.)

But deportation is different. It’s a dramatic life-changer, often more so than incarceration. It affects the now-banished immigrant, but also his family. So somebody ought to mention it to a defendant before he takes a plea and effectively deports himself.

For that reason, since the days of disco the ABA has had standards of conduct for defense lawyers, requiring us to inform our clients fully and accurately about what consequences they might face. See ACA Standards for Criminal Justice, 14-3.2 Comment 75. Some, but not all, states also require it by law. And some states even require judges to do it from the bench as part of the plea colloquy.

But now the Supreme Court has ruled that, as a matter of constitutional law, failure to inform an alien of the risk of deportation is ineffective assistance of counsel. It violates the Sixth Amendment. So the client can take back his plea and go to trial instead.

Great for clients, some defense lawyers may be huffing, but not for us. Now what, are we supposed to master a whole nother specialty of law, and a notoriously byzantine one at that, just so we can do a constitutionally effective job? That would suck!

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Well no, the rule doesn’t suck. We do not have to all of a sudden become experts in immigration law. We do not have to parse the insanities and inanities of that highly complex field. All we have to do is advise our clients that there is a risk of deportation. And we’d better not tell them there is no risk, when there really could be one.

This really is nothing new. It’s what we’re supposed to have been doing all along. For example, look at U.S. v. Couto, a Second Circuit case from 2002. That one held that incorrectly advising one’s client about deportation (as opposed to failing to advise at all) was obviously ineffective assistance of counsel. But it reminded everyone that, when a client is an alien, “counsel and not the court” must advise him of possible deportation. They cited the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 323 n. 50 (2001), which pointed out that:

Even if the defendant were not initially aware of [deportation issues], competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision’s importance.

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acadian deportation

Criminal deportation has a long history in this country. Although it serves a punitive purpose — notably deterrence and incapacitation — it’s not treated as a penal matter. It’s an administrative function of the federal government, which has the authority to regulate aliens and immigration. It’s firmly part of customary international law, a right of nations.

For a long time, though, deportation was reserved for only a few crimes. For a while, it was only used for felonies of “moral turpitude” (a phrase never statutorily defined), and then in 1917 they added anarchy and attempting to overthrow the government (a real problem back then). In 1931 they added drug crimes, but not if the defendant was an addict.

By this time, at the start of the Great Depression, immigration had become a hot-button issue. Importing criminals was no-go, and allowing aliens to remain once they had committed crimes would reduce the public’s confidence in the rightness of immigration. So from this point forward, the number of things one could get deported for grew by leaps and bounds. By 1988, you could get deported for a wide range of violent and non-violent crimes. The number of offenses went through the room with the passage of the AEDPA in 1996.

Between that and the IIRIRA, practically anything can get you deported now. And at the same time there is little to no leeway, mitigation or discretion allowed. Low-level state crimes are enough. Suspended sentences are enough, even if they’re never served. It’s pretty much automatic. There is no release valve, other than finding some plea bargain that doesn’t have deportation consequences.

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Well, that’s hardly a challenge to defense counsel, if you think about it. It’s no different from searching for that elusive federal misdemeanor, when negotiating a federal plea. It’s like searching for a needle in a stack of needles, but it’s not always a fruitless task.

If our job is to get the best outcome for our clients as we can, doesn’t that mean we’re duty-bound to try and find some outcome that won’t result in deportation? And doesn’t that mean we have to at least know what offenses do and do not have immigration consequences?

So it’s hardly a stretch to then inform a client that a particular plea bears a risk of deportation. It’s not a big deal. Nobody should be upset about this. We all ought to have been doing this already.

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