Ethical Duties to Advise of Immigration Consequences, Potential Impactions of Padilla v. Kentucky, and Indigent Defense Cynthia Orr NACDL Benita Jain Immigration Defense Project Hans Meyer Colorado State Public Defender

The ineffective assistance of counsel floor vs The ineffective assistance of counsel floor vs. Ethical/professional representation Highest standard of representation is the goal. IAC standards do not equal ethical standards.

WHAT INFORMS INEFFECTIVE ASSISTANCE OF COUNSEL? State rules of professional conduct. Prevailing practice. ABA Standards for Criminal Justice. National Legal Aid and Defender Association Performance Guidelines. Nationwide Trends / Cases / Rules.

INEFFECTIVE ASSISTANCE OF COUNSEL FLOOR Information given to client by Defense Counsel Case law / statute Trend & Persuasive Authority Silence Not IAC ∅ Ethical Notice ? IAC ∅ Ethical Misadvise [harm] IAC

CONSTITUTIONALITY OF PLEA VS. INEFFECTIVE ASSISTANCE OF COUNSEL Collateral Consequences Doctrine Applicability to trial court v. Defense Counsel What is not collateral? Sentence, Terms of plea agreement.

COUNSEL’S OBLIGATIONS – ADVICE Standard 14-1.4 Defendant to be advised:  . . . (c) Before accepting a plea of guilty . . ., the court should also advise the defendant that by entering the plea, the defendant may face additional consequences. . . . (listing examples). . . . and, if the defendant is not a United States citizen, a change in the defendant’s immigration status. The court should advise the defendant to consult with defense counsel if the defendant needs additional information concerning the potential consequences of the plea. . . .   ABA Standards for Criminal Justice, Pleas of Guilty 14-1.4(c)(emphasis added).

COUNSEL’S OBLIGATIONS – ADVICE Defendant to be advised:  Grave immigration consequences flowing from a guilty plea is a serious and growing issue. Deportation may be automatic following conviction for certain offenses. Many states now require court to inform defendant of potential adverse immigration consequences ABA Standards for Criminal Justice, Pleas of Guilty 14-1.4(c), Comment.

TEXAS CODE OF CRIMINAL PROCEDURE TEXAS CODE OF CRIMINAL PROCEDURE Art. 26.13. Plea of guilty (a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of: …(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law; …(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.

CURRENT TRENDS TEXAS CODE OF CRIMINAL PROCEDURE Art. 26.13. Plea of guilty (a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of: …(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law; …(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. 9

OREGON REVISED STATUTES PROCEDURE IN CRIMINAL CASES 135.385. Guilty or no contest plea; court's address to defendant (1) The court shall not accept a plea of guilty or no contest to a felony or other charge on which the defendant appears in person without first addressing the defendant personally and determining that the defendant understands the nature of the charge. (2) The court shall inform the defendant:… (d) That if the defendant is not a citizen of the United States conviction of a crime may result, under the laws of the United States, in deportation, exclusion from admission to the United States or denial of naturalization.

PEOPLE V. POZO 746 P.2D 523 (COLO 1987). 6th Amendment right to effective assistance of counsel requires that attorney provide sufficient accurate advice to enable defendant to fully understand a and assess the seriousness of legal proceedings 11

ARE THESE COLLATERAL OR DIRECT CONSEQUENCES Deportation while not in reality criminal punishment may have far more serious direct effect on this defendant than his sentence of imprisonment for two years. For all practical purposes, the Court sentenced him to serve for two years in jail and the rest of his life in exile. For the Supreme Court has said that ‘deportation is a drastic measure, at times the equivalent of banishment or exile’ and ‘is a penalty.’ Mr. Justice Jackson has described it as a ‘life sentence of banishment’ I cannot believe that no ‘manifest injustice’ exists merely because the sentence of banishment for life was not imposed directly by the judge.” United States v. Parrino, 212 F.2d 919, 924 (2nd Cir.),cert. denied, 348 US 840 (1954)[J.Frank dissenting].

COUNSEL’S OBLIGATIONS – ADVISE Defense Counsel obligation – Generally (a) Keep defendant informed about plea offer developments. (b) Investigate and advise of alternatives and issues defendant and counsel deem important. No recommendation to enter plea without investigation. (c) Ultimate decision to enter plea is defendant’s. (d) Candor and honesty to the prosecutor. (e) Consider whether diversion is possible. (f) Determine and advise defendant in advance of plea of possible collateral consequences. ABA Standards for Criminal Justice, Pleas of Guilty 14- 3.2 (emphasis added). See also ABA Criminal Justice Standards, Defense Function, 4-6.1(b).

COUNSEL’S OBLIGATIONS – ADVISE Critical – System relies on Defense Counsel to ensure defendant’s guilty plea is knowing, voluntary and in defendant’s own best interest. Trial Court inquiry is not a substitute for counsel’s obligations. ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2.

COUNSEL’S OBLIGATIONS – GENERALLY Defense Counsel as fiduciary given serious and lasting effect of Collateral consequences on family and client. Individualized evaluation of circumstances. Assumes counsel fulfills duty to understand client’s particular concerns & circumstances. ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2.

COUNSEL’S OBLIGATIONS What are the client’s goals? Avoid jail time? Avoid fines? Avoid being moved far from family? Minimize adverse immigration consequences?

COUNSEL’S OBLIGATIONS – COLLATERAL CONSEQUENCES “Number and significance of collateral consequences require separate standard on this obligation. “. . . [I]t may well be that the client’s greatest priority will be the immigrations consequences of conviction.” “. . . [L]awyer should be familiar with the basic immigration consequences that flow from different types of guilty pleas. . .” ABA Standards for Criminal Justice, Pleas of Guilty 14- 3.2(f)(Comments).

Rule 11, Federal Rules of Criminal Procedure (2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in plea agreement). (3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. 18

IAC FLOOR Affirmative misadvice regarding immigration of conviction constitutes ineffective assistance of counsel. U.S. v. Kwan, 407 F.3d 1005 (9th Cir. 2005). Distinguished U.S. v. Fry where failure to advise “without more” is not ineffective assistance. Notice – What “more” is “more”? On notice that client is not a citizen? Client tells you he is concerned about deportation? An immigration detainer is filed? Client reports having been visited by ICE officials?

IAC FLOOR RISING... New Mexico v. Pardez, 101 P.3d 799 (N.M., 2004). Affirmative duty to determine immigration status and specifically advise of immigration consequences. U.S. v. Cuoto, 311 F.3d 179 (2nd Cir. 2002). Failure to inform client of deportation consequences of plea may be objectively unreasonable. People v. Pozo, 746 P.2d 523 (Colo. 1987). Ineffective not to advise if attorney had reason to believe immigration law would be relevant to the client and the client’s legal problems

AND RISING... Segura v. State, 749 N.E.2d 496 (Ind. 2001). Failure to advise client of immigration consequences of plea require conviction be vacated. Several state and federal cases. Failure to informed client of Judicial Recommendations against deportation is IAC.

COUNSEL’S OBLIGATIONS – COLLATERAL CONSEQUENCES Find out immigration status if applicable. Be aware of “other” consequences of conviction including deportation. Be familiar with direct and collateral consequences of sentence and judgment including deportation. NLADA Performance Guidelines 2.2 (Initial Interview, 6.2 (Contents of Negotiations), 8.2 (Sentencing Options, Consequences, and Procedures.

COUNSEL’S OBLIGATIONS – COLLATERAL CONSEQUENCES Affirmative duty: Determine immigration status of client.  Affirmative duty: Specifically advise of how plea will impact immigration status.   IAC: Misrepresenting immigration consequences. IAC: Failure to advise of deportation. John Wesley Hall, Jr., Professional responsibility in Criminal Defense Practice, § 10:27-28 (West, 2005).

IAC FLOOR To ensure pleas if voluntary, counsel must: Fully inform defendant of ramifications of plea. Fully investigate case, research law, file appropriate motions. Discuss, more than briefly, charges and defenses with client. John Wesley Hall, Jr., Professional responsibility in Criminal Defense Practice, § 10:27-28 (West, 2005).

A LAWYER SHOULD ASSIST IN IMPROVING THE LEGAL SYSTEM “Fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a tribunal . . . Is inconsistent with fair administration of justice, and it should never be participated in or condoned by lawyers.” ABA Model Code of Professional Responsibility, Canon 8, EC 8-5.

A LAWYER SHOULD ASSIST IN IMPROVING THE LEGAL SYSTEM “If a Lawyer believes that the existence . . . of a rule of law, substantive or procedural, causes or contributes to an unjust result, he should endeavor by lawful means to obtain appropriate changes in the law. . . . [L]egal procedures should be improved whenever experience indicates change is needed.” ABA Model Code of Professional Responsibility, Canon 8, EC 8-2.

Padilla v. Kentucky

Padilla v. Kentucky: Facts Jose Padilla – 40-year lawful permanent resident and Vietnam-era veteran Defense attorney misadvised that he would not be deported if he pled guilty to marijuana trafficking Padilla pled guilty and faces mandatory deportation because of his conviction (drug trafficking is an aggravated felony under immigration law)

Padilla v. Kentucky, cont. Padilla moved to vacate his guilty plea, claiming his attorney’s misadvice constituted ineffective assistance of counsel Kentucky Supreme Court held that deportation is a collateral consequence, and therefore failure to advise as well affirmative misadvisal is outside the scope of the Sixth Amendment right to counsel.

Padilla v. Kentucky: Questions presented to Supreme Court Does the Sixth Amendment require a defense attorney to investigate and advise client of deportation consequences of a guilty plea? Does misadvising client about deportation consequences constitute ineffective assistance of counsel under the Sixth Amendment?

Deportation Basics

Immigration status affects the criminal process Pre-trial release Plea bargaining Sentencing Conditions of post-conviction confinement

Possible immigration consequences of criminal charges and convictions Deportation Detention – can be anywhere in country, can last weeks or years Ineligibility for U.S. citizenship Ineligibility to adjust status (get green card) Inability to be readmitted to U.S. after trip abroad

Any person who is not a U. S Any person who is not a U.S. citizen can be deported – including lawful permanent residents and refugees. A broad range of offenses – even minor ones – can lead to deportation. Some convictions lead to mandatory deportation – no chance to remain in the U.S.

Lawful permanent residents LPRs can be deported for a wide range of convictions. Red flags: Almost any drug offense – except one-time simple possession of 30g or less of marijuana Aggravated felony – a long list of offenses that have to be neither aggravated, nor felonies Firearm offense Crime involving moral turpitude Domestic violence, stalking Child abuse/abandonment/neglect Violating order of protection (civil or criminal finding)

Undocumented immigrants Deportable, regardless of outcome of criminal case But the criminal justice process may flag person for deportation And outcome of criminal case can affect whether person can apply for relief from deportation (e.g. get a green card through citizen spouse). Some red flag offenses (conviction or admission): Any drug offense Crime involving moral turpitude Prostitution

Criminal defense attorneys: first - and sometimes last - line of deportation defense! Once a person has a final conviction, often, little can be done in immigration court to mitigate its effect Often, simple strategies can make the difference between mandatory deportation and a chance to remain in the U.S.

Realities of Immigration Advisements in Indigent Defense Systems Case volume Limited funding Specialized knowledge More “serious” issues to worry about Where to draw the line

Criminal Court to Immigration Court ARREST BOND? CONVICTION RELEASE ICE Detainer ICE Detainer 48 HOUR RULE ICE CUSTODY NTA ICE BOND? IMMG COURT

Criminal Law v. Immigration Law There are different constitutional and statutory rights for immigrants who are in the criminal justice system than in the immigration law system: Immigrants have more fundamental rights in the criminal justice system Immigrants have more due process guarantees in the criminal justice system Immigrants have more Constitutional protections in the criminal justice system

Criminal Law v. Immigration Law: Examples of Different Rights and Protections Constitutional right to an attorney for the indigent. Gideon v. Wainwright, 372 U.S. 335 (1963) Strong 4th, 5th, 6th, and 8th Amendment rights Immigration Law Statutory right to a lawyer only if client can afford to pay. INA § 240(b)(4). Some constitutional and statutory rights

Criminal Law v. Immigration Law: Examples of Different Rights and Protections No Ex Post Facto laws Strict protection by the Rules of Evidence No Double Jeopardy Usually a right to an individual determination of bond Access to Consulate under the Vienna Convention? Immigration Law Ex Post Facto laws apply Very loose application of the Rules of Evidence Limited Res Judicata right Subject to denial of bond based on broad categories Access to the Consulate under the Vienna Convention?

Mandatory Immigration Detention The Immigration and Nationality Act mandates that most immigrants convicted of crimes will be subject to mandatory detention during the course of their removal proceedings. See INA § 236(c). 1) if mandatory detention is triggered, client will not be eligible to bond out of immigration detention 2) claims for relief from removal can take anywhere for a few months to years to complete 3) Even though an undocumented person or a lawful permanent resident may have an ICE detainer in place, they are often eligible to qualify for and post an immigration bond if they do not trigger the mandatory detention provision.

Example #1: A Tale Of Two Defendants Hans (undocumented): Charge: Simple Assault bar fight Offer: Plead guilty to M1 Assault, knowingly causing injury Results: Crime of Moral Turpitude Mandatory Detention Criminal Inadmissibility Destroys most defenses Hans (undocumented): Charge: Simple Assault bar fight Offer: Plead guilty to M2 attempt recklessly causing injury Results: Not Crime of Moral Turpitude Not Mandatory Detention Not Criminal Inadmissibility Still eligible for defenses

A Tale Of Two Defendants Charge – Misd Consult – AF/DV Nego Safe Plea Immig Interview Lawful Perm Resid Charge – Sent AF Plea & Sent ICE arrest Detention-CO AF removal

Example #2: A Tale Of Two Defendants Hans (LPR): (green card since 2006) Charge: F6 PCS Cocaine Offer: DJ/S stip probation Results: Controlled Substance Off. Mandatory Detention Destroys some defenses? Hans (LPR) (green card since 2006) Charge: F6 PCS Cocaine Offer: PG to M1 PCS Marijuana less than 30 grams Results: Not Cont. Substance Off. Not Mandatory Detention Not Deportable

What questions do you ask him? Case Study Your client was born in Honduras. He is charged with the following offenses in connection with an identity theft scheme: Identity theft (felony, max sentence 5 years) Larceny (misdemeanor, max sentence 1 year) Trespass What questions do you ask him?

Case Study, cont. Basic questions to ask every non-citizen client: Immigration status, date of getting status Date of coming to U.S. Any priors/full criminal history Immediate family members and their status

Case Study, cont. You ask the questions and get these additional facts: Client is a lawful permanent resident (LPR) Came to U.S. as LPR in 2003 No priors Parents, Spouse and kids are all U.S. citizens

Case Study, continued Deportability red flags: Aggravated felony for theft (if 1-year sentence) Aggravated felony for fraud (if loss to victim is greater than $10,000) Crimes involving moral turpitude

Case study, cont. Possible defense strategies (depend on exact elements of criminal statute, but these are typical possibilities): If pleading to a theft offense, avoid a 1-year sentence (364 days instead of 365) If pleading to offense requiring intent to defraud/deceive, make clear that loss was not greater than $10,000 Either offense could possibly be CIMT – but by itself, would no make him deportable because he came to US more than 5 years ago Perhaps trespass is safest option, even with a long sentence and restitution? Consider going to trial

Components of a Defender Immigration Service Plan Advisal Information Gathering Staff Development Language Access Direct Immigration Service or Referral (Protocol for the Development of a Public Defender Immigration Service Plan by Immigrant Defense Project and New York State Defenders Association)

NACDL Guidelines To refuse to engage in the defense of these cases unless counsel is competent in the area and is provided adequate time and resources to allow meaningful representation To learn how to defend particular charged offense cases before undertaking the representation of an individual charged with the offense 55

To insist upon privacy with the client Perform a sufficient investigation to determine whether factual defenses are available to these individuals in order to provide full and informed advice on the collateral consequences of entering into a guilty plea. To insist upon privacy with the client The lawyer should either be bilingual (in English and their client’s language) or have qualified interpreters in the client’s first language to assist counsel 56

Preserve any violation of the Geneva Convention on Consular Rights. Sufficiently investigate whether the client has mental health, asylum or other issues. Consult directly with the client during every critical phase of the case. Counsel should attempt to obtain a quick trial in Operation Streamline cases to avoid temptation to the client to make a deal simply to get home more quickly. Contact the appropriate consulate to obtain consular services for the client. Preserve any violation of the Geneva Convention on Consular Rights. 57

Present special seminars to train counsel on how to handle these cases Develop a sufficient psycho-social history, obtain witnesses and other evidence in order to provide strong representation at sentencing. Appointed counsel must be paid in compliance with the Criminal Justice Act. Counsel should insure adequate food, health care and clothing for their clients and arrange with the arresting and detaining authorities for the return of client property. Present special seminars to train counsel on how to handle these cases 58

Seek dismissal of defensible cases and the immediate return/release of those persons whose cases are so dismissed Offices which deal with Operation Streamline should keep accurate and full statistical information to determine whether the program is being applied in a manner that discriminates against any invidious group. 59

Advisement Models for Public Defender Offices In-House Model - immigration expert housed in defender office Staff Split Model - immigration expert shared between defender office and local immigration organization Central Office Model - immigration expert(s) housed at a central office and provides advisals to local offices

Advisement Models for Public Defender Offices, cont. Contract Model - defender office outsources advisals to a separate (immigration) organization Statewide Layered Model - statewide immigration supervisor works with immigration experts at larger defender offices and defenders designated as immigration liaisons at smaller offices and assigned counsel programs (For full descriptions of models, see Protocol for the Development of a Public Defender Immigration Service Plan at www.immigrantdefenseproject.org)

Colorado Advisement Model Criminal Immigration Analysis 1) What is the immigration narrative/history for client? 2) What are ALL of your client’s prior convictions? 3) Is your client in custody or on bond? 4) What are the charges, offer, tenor of DA/court, client mitigation, strength of defense and negotiations room?