Author:Wiessner, Greta A.

INTRODUCTION 464 I. RELATIONSHIP BETWEEN CRIMINAL CONVICTIONS AND IMMIGRATION PROCEEDINGS 467 A. Comparing Inadmissibility and Deportability 468 B. Aggravated Felonies 469 C. Crimes Involving Moral Turpitude 470 D. Controlled Substance Offenses 471 E. Denials of Relief from Removal 471 F. Defining Convictions for Immigration Purposes 472 II. INEFFECTIVE ASSISTANCE OF COUNSEL 473 III. PADILLA: INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES 474 IV. PADILLA IN PRACTICE: A RIGHT WITHOUT A REMEDY 476 A. Lack of Right to Counsel for Noncitizens in Removal Proceedings 477 B. Challenges to Using Habeas Corpus and State Post-Conviction Statutes as Vehicles for Padilla Relief 478 1. Post-Conviction Relief Statutes 479 2. Habeas Corpus Relief 480 3. Writs of Coram Nobis 481 V. A STATE-BASED SOLUTION TO THE INEFFECTIVE ASSISTANCE OF PADILLA 482 A. States Can Create New Rules of Criminal Procedure to Raise Padilla Claims 482 B. Limitations of State-Based Remedies to Padilla Claims 484 VI. FEDERAL SOLUTION 486 A. Defining "Conviction" for Immigration Purposes 486 B. Burden of Proof that a Conviction Is Constitutionally Invalid 492 C. Application to Inadmissibility Grounds 494 D. Advantages of Litigating Padilla Claims in Federal Court 495 CONCLUSION 496 INTRODUCTION

In a 2010 landmark decision, the Supreme Court held that the Sixth Amendment requirement of providing effective assistance of counsel to criminal defendants includes the right to advice on the immigration consequences of a guilty plea. (1) According to Padilla v. Kentucky, a guilty plea is constitutionally defective if a noncitizen is not informed that the underlying conviction will make him or her removable from the United States under federal immigration law. (2)

Despite the promise of Padilla, for many noncitizens with legitimate claims for ineffective assistance of counsel, relief has remained elusive. Especially for noncitizens who accept pleas with short or noncustodial sentences, the impact of Padilla is often a right without a remedy. (3)

The mismatch between the right announced in Padilla and the remedy has several causes. First, noncitizens who are not adequately informed of the immigration consequences of their guilty pleas often only become aware of this constitutional defect when they are subject to removal proceedings in federal immigration court. By this point, not only is there no right to court-appointed counsel in immigration proceedings, but also many of the state remedies for ineffective assistance of counsel claims are closed due to timeliness and custodial limitations. Second, there is no mechanism to challenge the criminal conviction in immigration courts. A noncitizen is forced to navigate both federal immigration proceedings and state criminal procedures simultaneously, often without counsel. Finally, some noncitizens never have access to a form of relief under Padilla to begin with. For example, a noncitizen whose plea includes participation in a diversion program that is not a conviction for state law purposes cannot vacate the conviction in state courts, but he or she can still be removed if the conviction meets the definition of conviction under the Immigration and Nationality Act (INA). (4)

One potential solution to the ineffective assistance of Padilla is for states to implement a remedy States have the ability to create tailored state criminal procedural rules to provide noncitizens with a remedy for Padilla violations. (5)

However, given the lack of momentum to pass such laws and disagreement about the proper forum to provide Padilla relief, a federal remedy is the preferable option. The right of a noncitizen with an unconstitutional criminal conviction to remain in the United States should not depend on which state entered the conviction. A uniform federal remedy is needed to address the ineffective assistance of Padilla.

Federal courts should interpret the definition of "conviction" under the INA to include only convictions supported by adequate procedural safeguards. If a conviction is the result of procedures so deficient that Congress would not have intended to make the noncitizen removable, the conviction cannot serve as the basis for removal. Convictions entered in violation of Padilla--where noncitizens were not provided effective assistance of counsel as required by the Sixth Amendment--fall squarely within this category of convictions. Such a reading would require the government either to prove that the minimal constitutional protections were afforded to the noncitizen in the convicting jurisdiction before relying on the conviction in the immigration courts, or to allow the noncitizen to litigate a Padilla claim in the federal forum. (6) The federal immigration courts should share the burden of implementing Padilla by ensuring that only constitutionally valid convictions lead to immigration consequences. In turn, states that are concerned with having state criminal convictions questioned in a federal forum will be incentivized to effectuate the guarantees of Padilla and provide a remedy for when the right is not met.

Of course, Congress could intervene at any point to amend the definition of "conviction" under the INA and clarify how convictions in violation of Padilla should be treated. Christopher Lasch proposes a rule to address "the disparity between Padilla's decision rule and its constitutional operative proposition." (7) Whereas Lasch provides a conceptual discussion of the constitutional right to crimmigration counsel announced in Padilla and proposes a rule to uphold these values, this Comment discusses Padilla in practice, outlining the meager current landscape of Padilla remedies and suggesting a federal solution based on statutory interpretation. Building on Lasch's insights about the advantages of providing Padilla relief in a federal forum, I will suggest how and why the federal courts should adopt the suggested interpretation of "conviction" under the INA in the absence of congressional intervention to implement Padilla.

Finally, a note about language and terminology: the INA refers to noncitizens as "aliens," which for many elicits the notion of "illegal aliens." Many immigrant communities understandably find references to the undocumented population as "illegal aliens" offensive. Additionally, use of the term "alien" under the INA can cause confusion because the statutory term includes all noncitizens and not just those who entered illegally: legal immigrants, nonimmigrant visitors on tourist visas, refugees, legal permanent residents (LPR), etc. To avoid offense or confusion, I will use the term "noncitizen" in place of alien. References to noncitizens are broadly construed to include legal permanent residents, visa holders, entrants without inspection, those who have overstayed nonimmigrant visas, asylum seekers, and refugees. When relevant, I will refer to a subset of noncitizens by a more specific term, such as "nonimmigrant visa holder" or "legal permanent resident."


    Federal immigration enforcement has a complex, interwoven relationship with criminal law, much of which is legislated and enforced on the state level. "Crimmigration" refers to the convergence of criminal law and procedure with immigration law, which since its inception has been considered a branch of civil law. (8) Removal of noncitizens for criminal offenses has long been a part of the federal immigration scheme. (9) In recent years, removals of noncitizens with criminal records have come to dominate immigration court dockets. (10)

    Removal proceedings are fully adversarial civil hearings. (11) An immigration judge presides over the hearing and a government official acts as the adversary to the noncitizen, who has the right to be represented by counsel at his own expense but no right to court-appointed counsel. (12) The noncitizen has the right to present evidence, give testimony, call witnesses, and cross examine government witnesses, although the noncitizen may not have the right to access secret government evidence for national security reasons. (13) The rules of evidence do not apply, meaning hearsay and unauthenticated documents are generally admissible. (14)

    Proceedings begin when the noncitizen is served with the charging document, known as the Notice to Appear (NTA). (15) The NTA may be served by mail or in person. (16) In the case of removals for criminal violations--the general topic of this Comment--the NTA may also be accompanied by an arrest warrant and the noncitizen may be detained--or in the case of certain criminal convictions must be detained--for the duration of the removal proceedings. (17)

    While the INA has been compared to the federal tax code in its complexity, (18) I will attempt to provide a brief explanation of removals for criminal convictions under federal immigration law. For the purposes of this Comment, the discussion will be limited to offenses committed by noncitizens in the United States that render the noncitizen removable.

    1. Comparing Inadmissibility and Deportability

      While removal is colloquially referred to as "deportation," noncitizens may actually be removed from the United States for criminal convictions under two distinct categories of the INA: 1) offenses that render the person inadmissible; and 2) offenses that render the person deportable. (19) Inadmissibility grounds apply to those who are attempting to enter or are present in the United States but have not made a lawful entry. (20) For example, both noncitizens arriving at the border and noncitizens who entered without inspection and are residing in the United States without legal status may be ruled inadmissible and removed. Noncitizens might enter the United States without inspection and live in the country for decades, but they will be subjected to the same grounds for removal as if they were just arriving at a...

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