Representing noncitizens in criminal proceedings: resolving unanswered questions in Padilla v. Kentucky.

• Author: Murphy, Kara B.

1. INTRODUCTION

   In Padilla v. Kentucky, the U.S. Supreme Court decided that an attorney is obligated to tell a noncitizen client that pleading guilty to a crime may result in the client's forced removal from the United States. (1) The defendant, Jose Padilla, claimed that his counsel failed to advise him that choosing to plead guilty might result in his deportation. This failure, Padilla argued, violated his Sixth Amendment right to effective assistance of counsel. (2) The Court agreed: "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation." (3) In reaching this conclusion, the Court reasoned that "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a risk of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less." (4)

   Two major issues remain unresolved in the wake of this pivotal opinion. First, the Supreme Court did not say whether its decision should apply retroactively to cases on collateral review. To date, only three federal circuit courts have decided whether defendants whose convictions are final should be able to seek relief based on Padilla. (5) As a result, most lower courts are forced to revisit this issue anew every time a defendant raises Padilla to challenge a final conviction. Second, it is uncertain whether Padilla will actually prevail on his claim of ineffective assistance of counsel. The Court remanded the case to the Kentucky Supreme Court because it concluded that Padilla's entitlement to relief "will depend on whether he can demonstrate prejudice as a result [of counsel's deficient performance], a question we do not reach because it was not passed on below." (6)

   Further clarification of these issues is imperative. These issues impact the lives of some of the most vulnerable people in the country--noncitizens. Today, noncitizens, whether illegal aliens or lawful permanent residents, can be removed from the United States for even the most minor drug offenses. (7) Once removed, the individual is often barred from coming back to the United States. (8) So for an individual without United States citizenship, being found guilty in a criminal case means facing punishment associated not just with the crime itself, but also with the individual's legal status in the country. In light of these high stakes, federal and state courts throughout the United States require guidance to address immigration issues in criminal proceedings in a way that is uniform, just, and efficient. Lacking such guidance, they must apply the standard announced in Padilla, but with little direction as to whether the decision allows for retroactive application and what kind of "prejudice" a noncitizen defendant must prove to prevail on a claim of ineffective assistance of counsel.

   This Comment argues that Padilla v. Kentucky should be applied retroactively because it did not announce a new constitutional rule of criminal procedure. Next, this Comment argues that Jose Padilla was "prejudiced" and therefore meets the requirement under Strickland v. Washington for showing that his Sixth Amendment right was violated. (9)

   Part II provides the background for this Comment, beginning in Part II.A with a description of the recent convergence of immigration and criminal law. Part II.B provides background on the Sixth Amendment and Strickland v. Washington. Part II.C explores implications of the Supreme Court's decision in Padilla and the standard for retroactivity under Teague v. Lane. Part III provides support for the arguments that Padilla should be applied retroactively and that on remand, Jose Padilla should prevail on his claim.

2. BACKGROUND

   1. THE NEW "CRIMMIGRATION" SYSTEM

      Between 2003 and 2008, the United States government removed nearly 1.5 million noncitizens from the country. (10) In the last decade, the number of foreign nationals deported from the United States has doubled. (11) The Supreme Court in Padilla v. Kentucky recognized that these numbers increased so dramatically because of changes in immigration law. (12) In fact, the Court appeared concerned with the increasingly punitive nature of criminal law for noncitizens. (13) The lack of consensus in the opinion, however, highlights the controversies lying at the heart of the case related to immigration and criminal law. (14)

      Criminal law in the United States is a harsh and unpredictable system for noncitizens. (15) In the first paragraph of the opinion, the Court observes that "Padilla's crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense." (16) Given the state of the law, the Court stressed that deportation for noncitizens who commit a removable offense is "practically inevitable," barring a decision by the Attorney General to exercise his limited discretionary power to cancel removal. (17)

      Padilla thus deals with an area of law that has harsh consequences for defendants who often have little or no knowledge of the American legal system and whose criminal defense attorneys may not adequately research the impact of the defendant's immigration status on their criminal case. (18) The Court's discussion reflects a theme recognized by scholars and commentators: the increasing criminalization of immigration. (19) Others refer to the new "crimmigration system." (20) Indeed, "the preoccupation with enforcement has left noncitizens in deportation proceedings exposed to large risks of error when the personal stakes are high." (21) The potential consequences--being forced to leave the United States and to separate from one's family--are serious. According to Professor Cruz, "[w]ithout knowledge of the immigration consequences of a conviction, or the individual's eligibility for immigration relief in general, defense counsel may not be able to diffuse the fears that cloud the noncitizen judgment, resulting in hasty plea decisions." (22) As a result, she argues, "[i]gnorance and marginalization of immigration law in the adjudication of a criminal case involving a noncitizen can be catastrophic." (23)

      Before analyzing the Kentucky Supreme Court's decision, the U.S. Supreme Court in Padilla described how changes in federal immigration law over the last century "have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation." (24) As a result, the Court observed, "[t]he 'drastic measure' of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes." (25) The Immigration and Nationality Act (INA) sets forth classes of deportable aliens. (26) For example, if an alien is convicted of two or more crimes of moral turpitude, he or she is automatically deportable. As for drug offenses, the law reads:

      [a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ... other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable. (27) In light of the state of the law, the Court insisted that accurate legal advice for noncitizens in criminal proceedings "has never been more important" because "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." (28)

   2. THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

      Because of Padilla, defendants in deportation proceedings can now contend that their counsel was deficient for not advising that their guilty plea could lead to deportation. However, as the Court recognized, "it is often quite difficult for petitioners who have acknowledged their guilt to satisfy" the standard under the seminal case of Strickland v. Washington. (29) That standard requires defendants to show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant.

      The Sixth Amendment provides in relevant part that "in all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence." (30) The first prong of Strickland's two-prong test requires that, "[w]hen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." (31) The second prong, known as the prejudice prong, requires the defendant to "show that the deficient performance prejudiced the defense." (32) A defendant seeking to prevail on a Strickland claim must show that both prongs have been satisfied. (33)

      Because it is so common for defendants to plead guilty in criminal proceedings, (34) the Court has "long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment fight to effective assistance of counsel." (35) The overwhelming majority of criminal convictions result from guilty pleas. (36) When a defendant enters a guilty plea, that plea must "represent[] a voluntary and intelligent choice among the alternative courses of action open to the defendant." (37) Hill v. Lockhart established that Strickland applies to an attorney's advice regarding a guilty plea. (38) Therefore, a defendant can successfully argue that his or her guilty plea was not "voluntary and intelligent" if the defendant can show that defense counsel was constitutionally deficient and that the defendant pied guilty as a result.

   3. PADILLA V. KENTUCKY AND ITS IMPLICATIONS

      1. Jose Padilla's Path to the U.S. Supreme Court

         Defendant Jose Padilla was born in Honduras but lived in the United States as a legal permanent resident for over forty years. (39) He also served his...