In a fascinating but unpublished decision, the Texas Court of Appeals, Thirteenth District, relied in part on an incorrect understanding of immigration law to deny a Padilla claim. Ex Parte Galvan-Herrera, No. 13-11-00380-CR, slip op. (Tex. Ct. App. April 26, 2012) (Rodriguez, Benavides, and Perkes, JJ.). Justice Rodriguez wrote the panel’s opinion; Justice Benavides wrote a separate concurrence.
The bulk of the court’s decision rested on its interpretation of Texas’s habeas statute, Tex. Code Crim. P. art. 11.072, § 9(a). Specifically, the court concluded that Galvan-Herrera’s claim was a “subsequent” habeas application subject to strict procedural bars: the subsequent application must provide a new factual basis or raise a new legal claim that could not have been made in the initial habeas application. Ex Parte Galvan-Herrera, No. 13-11-00380-CR, slip op. at 9.
I take no issue with the court’s analysis of the state habeas provision, but I am concerned about its understanding of the underlying immigration law raised by Galvan-Herrera’s claim. Galvan-Herrera, an LPR, was convicted in 1987 of burglary. The concurring justice concludes that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), required the defense attorney to advise Galvan-Herrera either that deportation would result from conviction or, if the immigration consequence of conviction was not clear, that adverse immigration consequences may nonetheless result. Ex Parte Galvan-Herrera, No. 13-11-00380-CR, slip op. at 3 (Benavides, J., concurring).
The majority, however, confidently states that “burglary was undisputedly not a deportable offense at the time of Herrera’s guilty plea.” Ex Parte Galvan-Herrera, No. 13-11-00380-CR, slip op. at 4 n.2. The court then cited to the original aggravated felony statutory provision, enacted in 1988, and a U.S. Court of Appeals for the Seventh Circuit decision explaining that aggravated felonies didn’t result in deportation until 1988. Ex Parte Galvan-Herrera, No. 13-11-00380-CR, slip op. at 4 n.2.
Unfortunately, neither supports the court’s sweeping proposition that “burglary was undisputedly not a deportable offense” in 1987. As I wrote in When State Courts Meet Padilla, state courts tend to be unfamiliar with the intricacies of immigration law. Now that they’re forced to identify the immigration consequences of conviction so as to determine whether a particular defense attorney accurately advised a client, they frequently err. Galvan-Herrera’s comment that burglary wasn’t a deportable offense in 1987 because the aggravated felony category hadn’t been introduced into immigration law is an example of this problem.
It’s true that burglary wasn’t an aggravated felony in 1987. The aggravated felony provision wouldn’t enter immigration law until the next year when it was included in the Anti-Drug Abuse Act of 1988. As such, no defense attorney in 1987 would have told someone in Galvan-Herrera’s position that his conviction would be considered an aggravated felony under immigration law, thereby subjecting him to the host of consequences that now attach: mandatory detention pending removal proceedings, ineligibility for cancellation of removal, and ineligibility for relief under former INA § 212(c) (though this happened in stages beginning in 1990 and ending with its repeal in 1996) among the most important consequences.
A conscientious attorney counseling Galvan-Herrera about immigration consequences, however, would have told him that burglary was a crime involving moral turpitude. And, even in 1987, an LPR convicted of a CIMT within five years of admission and sentenced to confinement for a year or more “shall…be deported.” 8 U.S.C. § 1251(b)(4) (1982). Galvan-Herrera’s five-year prison term would have satisfied the one-year confinement requirement. The court doesn’t address whether his conviction occurred within five years of admission, probably because it seems that the court didn’t even consider that burglary might result in deportation even though it was a CIMT back in 1987.
All that the court addresses is the aggravated felony ground of deportation. Certainly that’s an important inquiry. But it’s not the only relevant inquiry. As any immigration attorney knows—and by now, most criminal defense attorneys should know it too—people can get kicked out of the country for a host of reasons—convictions for CIMTs, aggravated felonies, controlled substances offenses, and much more.
Even if Galvan-Herrera’s burglary conviction “did not make him mandatorily deportable at the time he pleaded guilty,” Ex
Parte Galvan-Herrera, No. 13-11-00380-CR, slip op. at 12, as the majority explains, that doesn’t mean that no advice about immigration consequences is required under Padilla’s reading of the Sixth Amendment right to counsel.
Padilla, as the concurrence notes, requires clear advice about presumptively mandatory deportation when deportation will clearly result. Padilla, 130 S. Ct. at 1483. When the result is not clear, however, a criminal defense attorney must advise a noncitizen defendant that adverse immigration consequences may result from conviction. Padilla, 130 S. Ct. at 1483. Unlike the concurrence, the majority doesn’t explain why Galvan-Herrera’s attorney wasn’t required to do at least that much.
That’s my disagreement with the majority. Now for my enthusiasm about the concurring opinion. Justice Benavides calls out the courts for their refusal to apply the Ex Post Facto Clause to immigration statutes. Ex Parte Galvan-Herrera, No.
13-11-00380-CR, slip op. at 4 (Benavides, J., concurring). The Ex Post Facto Clause, U.S. Const. art I, § 9, cl. 3, typically prohibits legislatures from criminalizing actions that already occurred. In other words, if Congress today decides to criminalize using a cell phone while driving, you can be punished for using a cell phone on your way home tonight, but you can’t be punished for having used a cell phone on your way home last week. Why? Because last week you didn’t have notice that using a cell phone while driving would become a crime today. This is not rocket science; it’s simple fairness.
Since immigration law is considered civil not criminal, however, the Ex Post Facto Clause has been held not to apply. Galvan v. Press, 347 U.S. 522, 531 (1954). Justice Benavides thinks its time “for a re-evaluation of whether the Ex Post Facto Clause of the Constitution applies to retroactive deportation statutes.” Ex Parte Galvan-Herrera, No. 13-11-00380-CR, slip op. at 4 (Benavides, J., concurring). Let’s hope other jurists heed this long-overdue advice.