Padilla v. Kentucky: the Duty of Defense Counsel Representing Noncitizen Clients
| Publication year | 2011 |
| Pages | 37 |
| Citation | Vol. 40 No. 3 Pg. 37 |
2011, March, Pg. 37. Padilla v. Kentucky: The Duty of Defense Counsel Representing Noncitizen Clients
March 2011
Vol. 40, No. 3 [Page 37]
Immigration Law
Immigration Law articles are sponsoredby the CBA Immigration Law Section to present current issues and topics of interest to attorneys and judges on all aspects of immigration law.
Coordinating Editors
Lisa Battan, Boulder, of Lisa E. Battan, P.C.-(303) 444-8668, lisa.battan@battanlaw.com; David Kolko, Denver, of Kolko and Associates, P.C.-(303) 371-1822, dk@kolkoassociates.com
About the Author
Hans Meyer has a private law practice specializing in immigration law, criminal defense, and advisements regarding the immigration consequences of criminal convictions. He also serves as the Public Policy Director for the Colorado Immigrant Rights Coalition and is an active member of the American Immigration Lawyers Association, the National Immigration Project, the National Lawyers Guild, the ACLU of Colorado, and the Colorado Criminal Defense Bar-(303) 831-0817, hansmeyerlaw@gmail.com, www.themeyerlawoffice.com.
This article provides an overview of the Sixth Amendment duty of criminal defense counsel to advise noncitizen defendants about the immigration consequences of a guilty plea in light of the 2010 U.S. Supreme Court decision in Padilla v. Kentucky.
In March 2010, the U.S. Supreme Court issued its decision in Padilla v. Kentucky,(fn1) holding that the Sixth Amendment requires defense counsel to provide affirmative and competent legal advice to noncitizen defendants regarding the potential immigration consequences of a guilty plea.(fn2) The Padilla decision not only affirms the duty of defense counsel recognizedby the Colorado Supreme Court in People v. Pozo,(fn3) but also clarifies that duty in important ways.
Currently, when representing noncitizen clients, defense attorneys are faced with a landscape in which criminal law and immigration law have become increasingly interdependent. Over the past several years, dramatic changes to federal immigration law have greatly increased the categories of criminal offenses that trigger immigration consequences, while also eliminating several types of discretionary relief from removal.(fn4) As a result, increasing numbers of noncitizens find their lives inexorably alteredby mandatory immigration consequences that stem from convictions for what often are minor offenses.(fn5) In addition, an anti-immigrant enforcement strategy commonly known as "attrition through enforcement"(fn6) now dominates the immigration discourse. This strategy employs the use of state and local peace officers as a "force multiplier" for purposes of federal immigration enforcement.(fn7) Simultaneously, there has been an increase in state and local legislation targeting noncitizens.(fn8) This legislation pulls noncitizens into the criminal justice system and frequently compels state and local officers to act as a de facto first line of immigration enforcement, further blurring the distinction between criminal law and federal immigration enforcement.(fn9)
Consequently, the fates of noncitizen defendants often depend on criminal defense counsel, who may well be the only line of immigration defense for their clients, because indigent noncitizens are not constitutionally entitled to appointed counsel in immigration proceedings. As the "attrition through enforcement" model draws more noncitizens into the criminal justice system, defense counsel must be aware of the challenges that this enforcement regime and its intersection of laws poses to the effective representation of noncitizen clients. In many ways, Padilla is more than an important case articulating the Sixth Amendment duty that defense counsel owes to noncitizens; it may well be the legal cornerstone to safeguard fundamental fairness for noncitizens in the criminal justice system and beyond.
This article provides an overview of the duty of defense counsel to advise noncitizen clients in Colorado in light of the Padilla decision. The first section discusses the duty previously recognized in People v.Pozo. The article then discusses the U.S. Supreme Court decision in Padilla, and how it both clarifies and modifies defense counsel's advisement duty. Finally, the article addresses some issues likely to develop in the wake of the Padilla decision.
The People v. Pozo Opinion
Colorado has long defined the duty that defense counsel owes to noncitizen clients regarding the immigration consequences of criminal convictions. In 1987, the Colorado Supreme Court decided People v. Pozo, holding that the failure to advise a noncitizen defendant of the potential immigration consequences of a criminal conviction may constitute ineffective assistance of counsel.(fn10)
In Pozo, the defendant filed a claim for post-conviction relief, alleging ineffective assistance of counsel because his defense attorney did not advise him about the potential immigration consequences of his plea to second-degree sexual assault and escape.(fn11) In its decision, the Court focused on the two-pronged test for evaluating ineffective assistance of counsel under Strickland v. Washington(fn12) and Hill v. Lockhart,(fn13) which requires a defendant to show that defense counsel's performance fell below professional norms and that the defendant suffered prejudice as a result.(fn14) Pozo explained that such claims should be evaluated on a case-by-case basis, considering the "objective standards of minimally acceptable levels of professional performance prevailing at the time of the challenged conduct."(fn15) As a result, Pozo found that when defense counsel possesses sufficient information to form a reasonable belief that a client is a noncitizen, the attorney "may reasonably be required to investigate relevant immigration law."(fn16)
The Pozo Court found that this duty stemmed from the premise that attorneys must inform themselves of material legal principles that could significantly impact the circumstances of their clients, because "thorough knowledge of fundamental principles of deportation law may have significant impact on a client's decisions concerning plea negotiations and defense strategies."(fn17) The Court then remanded the case to the trial court to address whether the attorney had reason to know the defendant was a noncitizen and, if so, "what the standards of minimally acceptable professional conduct were at the time."(fn18)
Since 1987, Pozo has governed the evaluation of ineffective assistance of counsel claims related to immigration consequences in Colorado. Over time, and in response to the decision, the academic and legal community has provided analysis, training, and technical assistance to defense attorneys-as well as prosecutors, judges, and others in the criminal justice system-regarding the immigration consequences of convictions.(fn19) Pozo recognized an important duty in Colorado related to the representation of noncitizen defendants. During the last two decades, it has provided a narrow but essential post-conviction remedy in situations where representationby defense counsel is found to be ineffective.
The Padilla v. Kentucky Opinion
Jose Padilla is a citizen of Honduras who has been a lawful permanent resident of the United States for more than forty years, serving honorably in the U.S. Armed Forces during the Vietnam War.(fn20) In 2002, Padilla was charged in a felony case in Kentucky state court, where he ultimately pled guilty to the transportation of a large amount of marijuana in his tractor-trailer.(fn21) This plea made his deportation to Honduras virtually mandatory. As a result, Padilla later filed a state claim for post-conviction relief and withdrawal of his plea based on ineffective assistance of counsel.
In his post-conviction proceedings, Padilla asserted that he was unaware that his plea would result in his mandatory deportation and claimed that he agreed to plead guilty to the charge only after his court-appointed attorney specifically assured him that he "did not have to worry about immigration status since...
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