Padilla v. Kentucky: the Criminal Defense Attorney’s Obligation to Warn of Immigration Consequences of Criminal Conviction
| Citation | Vol. 28 No. 3 |
| Publication year | 2010 |
Georgia State University Law Review
3-28-2013
Padilla v. Kentucky: The Criminal Defense Attorney's Obligation to Warn of Immigration Consequences of Criminal Conviction
Nicole Sykes
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Recommended Citation
Sykes, Nicole (2011) "Padilla v. Kentucky: The Criminal Defense Attorney's Obligation to Warn of Immigration Consequences of Criminal Conviction," Georgia State University Law Review: Vol. 28: Iss. 3, Article 15. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss3/15
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PADILLA V. KENTUCKY: THE CRIMINAL DEFENSE ATTORNEY'S OBLIGATION TO WARN OF IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTION
Nicole Sykes*
Introduction
Abigail is a resident of Georgia.1 She immigrated to the United States and became a lawful permanent resident seventeen years ago.2 She married a United States citizen, and the couple now has three children.3 Abigail's life took a devastating twist recently when the United States Department of Homeland Security (DHS) initiated deportation proceedings against her for shoplifting a pack of cigarettes.4 She committed the crime over ten years ago and entered a guilty plea after consulting with a defense attorney.5 Under Georgia law, she received First Offender treatment and the judge sentenced her to twelve months confinement, suspended.6 Unfortunately, Georgia's First offender treatment does not translate into federal immigration law and her plea constitutes a conviction.7 When Abigail applied for citizenship, DHS noted her conviction and initiated removal proceedings against her.8 If Abigail's attorney had advised
* J.D. Candidate, 2012, Georgia State University College of Law. Special thanks to Carolina Antonini for her constant guidance and support and to John and my family for all of their encouragement and love.
1. This scenario was taken from an article written by Grace Sease and Socheat Chea with minor changes made to the facts. See Grace A. Sease & Socheat Chea, The Consequences of Pleas in Immigration Law, 6 Ga. B. J. 24, 24-27 (Oct. 2000).
2. Id.
3. Id.
4. Id.
5. Id.
6. Id. See Ga. Code Ann. § 42-8-60 (2006) (permitting the court, upon a plea of guilty, to defer proceeding and place a defendant who has never been convicted of a felony on probation or sentence the defendant without entering a judgment of guilt).
7. 8 U.S.C. § 1101(a)(48)(A) (2006) (defining an alien's plea of guilt and some form of court-ordered punishment as a "conviction" even if "adjudication of guilt has been withheld").
8. Sease & Chea, supra note 1. Because Abigail was convicted of a theft offense and sentenced to
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her that her plea would adversely affect her ability to apply for citizenship or remain in the United States, she may have never pleaded guilty.9
In Georgia, the courts recognize a noncitizen's claim of ineffective assistance of counsel when an attorney makes an affirmative misrepresentation as to the immigration consequences of a conviction or a plea.10 If Abigail had asked her attorney whether she would face adverse immigration consequences and he had responded in the negative, the court might vacate her judgment. The Georgia Supreme Court, however, does not recognize a claim for ineffective assistance of counsel when an attorney fails to inform a client of potential consequences on the client's status.11 If Abigail's attorney had never asked if she was a citizen and Abigail had never inquired into the possible immigration consequences, the court might uphold the judgment.12
Other circuit and state courts have recognized this distinction between affirmative misrepresentation and a failure to inform,13 with
twelve months confinement, her offense is defined as an aggravated felony. Id. As a lawful permanent resident convicted of an aggravated felony, she is not eligible for a waiver and her only relief from deportation is withholding of removal or protection under the Convention Against Torture. Id. Unfortunately, these forms of relief have a very high threshold that most applicants cannot meet. Id. 9. See Sease & Chea, supra note 1, at 27.
10. Rollins v. State, 591 S.E.2d 796, 798 (Ga. 2004) (holding that claims of ineffective assistance of counsel that arise from an attorney's affirmative misrepresentation to immigration consequences of criminal activity must be determined by the two-prong test of Strickland v. Washington); see Strickland v. Washington, 466 U.S. 668, 687 (1984).
11. Rollins, 591 S.E.2d at 797-98 (finding that the habeas court "erred by failing to distinguish between a lawyer's failure to inform his client of the collateral consequences attending a guilty plea and the affirmative misrepresentation of such consequences").
12. See Norton Tooby, Tooby's Guide to Criminal Immigration Law: How Criminal and Immigration Counsel Can Work Together to Protect Immigration Status in Criminal Cases 7 (Kerrin Staskawicz ed., 2008) (emphasizing that attorneys must ask every client whether the client is a noncitizen because a "client with a name like Peter Jackson who speaks perfect colloquial American English and appears Caucasian may turn out to be a citizen of Canada who has lived here since he was two years old").
13. United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000) (rejecting the defendant's claim of ineffective assistance of counsel when counsel failed to advise him of his plea's immigration consequences); United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990) (adopting the rule that "counsel's failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance" (quoting United States v. Campbell, 778 F.2d 764, 768 (11th Cir. 1985))). But see State v. Paredez, 101 P.3d 799, 804 (N.M. 2004) (holding that the defendant's counsel had an affirmative obligation to determine the defendant's immigration status and advise him on the immigration consequences resulting from his plea).
2012] IMMIGRATION CONSEQUENCES OF CRIMINAL CONVICTION 893
some courts finding that even affirmative misrepresentation does not constitute ineffective assistance of counsel.14 The United States Supreme Court recognized this inconsistency and sought to correct this disparity in Padilla v. Kentucky.15 In this case, the Supreme Court rejected the distinction between affirmative misrepresentations and a failure to inform and found that noncitizens facing criminal charges have a right to know that these charges may negatively impact their immigration status.16
In Abigail's situation, Padilla v. Kentucky would require that her attorney not remain silent as to her possible immigration consequences;17 however, the extent of her attorney's obligations and responsibilities remains unclear.18 The majority mandated that counsel has the "duty to give correct advice" when immigration law is "truly clear," and furthermore even if "the law is not succinct and
14. Downs-Morgan v. United States, 765 F.2d 1534, 1540 (11th Cir. 1985) (declining to hold that counsel's affirmative misrepresentation "in response to a specific inquiry by the accused which results in a plea of guilty necessarily constitutes ineffective assistance of counsel"); Commonwealth v. Padilla, 253 S.W.3d 482, 485 (Ky. 2008) (concluding that counsel's "act of advising appellee incorrectly provides no basis for relief" because immigration consequences of a conviction are outside the ambit of the Sixth Amendment).
15. Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010) ("[D]eportation is a particularly severe 'penalty.'" (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1983))). See Nina Totenberg, High Court: Lawyers Must Give Immigration Advice, National Public Radio, Mar. 31, 2010, http://www.npr.org/templates/story/story.php?storyId=125420249 ("[Benita] Jain, of the Immigrants Rights' Project, notes that deportation for an immigrant who's been here since childhood can mean being deported to a country where the individual has no family left, where he or she may not speak the language, and may not know how to 'get a job, a house or even order a meal.' And for some immigrants granted asylum here, deportation may return them to a country where they risk persecution.").
16. Padilla, 130 S. Ct. at 1484 n.11 ("[W]ere a defendant's lawyer to know that a particular offense would result in the client's deportation and that, upon deportation, the client and his family might well be killed due to circumstances in the client's home country, any decent attorney would inform the client of the consequences of his plea.").
17. See id. at 1483. "Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel's advice." Id. at 1483 n. 10.
18. See id. at 1496 (Scalia, J., dissenting) (arguing that the majority's opinion "has no logical stopping-point"); see also Gabriel J. Chin & Margaret Love, Status as Punishment: A Critical Guide to Padilla v. Kentucky, 25 Crim. Just. 21, 22 (Fall 2010) (asserting that the rationale of Padilla should extend to other severe consequences of conviction and that this expansion of counsel's obligations "represents sound public policy"); Margate Colgate Love & Gabriel J. Chin, Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction, 34 Champion 18, 22 (May 2010) [hereinafter Love & Chin, The Right to Counsel] ("The biggest question mark about Padilla, and its greatest potential for systemic impact beyond the immigration...
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