Symposium: Padilla is not a new rule because defense attorneys have long known to consider immigration consequences

By Craig Siegel

The amicus brief submitted in support of Roselva Chaidez by the National Association of Criminal Defense Lawyers (NACDL), the National Legal Aid and Defender Association (NLADA), and criminal defense and immigrant advocacy groups from across the nation, makes three important points that demonstrate why Padilla v. Kentucky, 130 S. Ct. 1473 (2010), should apply retroactively, including to Ms. Chaidez’s case.

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First, as carefully documented in the brief, deeply rooted professional norms since 1996 and well before then have ethically obligated criminal defense lawyers to advise their non-citizen clients about the immigration consequences of a criminal plea. This should be uncontroversial. Padilla acknowledged as much in concluding that “[f]or at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.” 130 S. Ct. at 1485. Nearly a decade earlier, INS v. St. Cyr similarly observed: “[T]he American Bar Association’s Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel should ‘fully advise the defendant of these consequences.’” 533 U.S. 289, 323 n.48 (2001) (citing American Bar Association (ABA) Standards for Criminal Justice, Pleas of Guilty 14-3.2, cmt. at 75 (2d ed. 1982)).

Second, these prevailing professional norms go well beyond the ABA’s longstanding criminal defense standards cited by the Supreme Court. They encompass similar standards promulgated by the NLADA and many state and local authorities. For example, the NLADA’s Performance Guidelines for Criminal Defense Representation (NLADA Guidelines), which were first adopted in 1994 and on which the Court relied in Padilla, 130 S. Ct. at 1482, provide that after determining a client’s immigration status, counsel should make a non-citizen client fully aware of possible deportation consequences. NLADA Guideline §§ 2.2(b)(2)(A); 6.2(a). Among various locally promulgated standards, the committee appointed by the Massachusetts Supreme Judicial Court to oversee the provision of legal representation to indigent persons in criminal court cases, has long required public defenders and bar advocates to advise a defendant of the immigration consequences of her conviction. Massachusetts Committee for Public Counsel Services, Performance Standards Governing Representation of Indigents in Criminal Cases, § 5.10(e) (Nov. 1988).

Of equal importance, an extensive array of national and local resources has long been widely available to criminal defense lawyers to enable them to effectively fulfill their ethical obligations to advise their non-citizen clients about the immigration consequences of a criminal plea. These resources include countless treatises, practice guides, law review articles, bar journals, defender-oriented publications, trainings, CLE classes, and technical assistance hotlines. Of particular relevance to federal criminal defense lawyers, the Federal Defenders of San Diego, Inc. has published an authoritative treatise, Defending A Federal Criminal Case, that has instructed since 1984:

The immigration consequences of a criminal conviction for a client must be initially analyzed. Deportation of a legal resident alien frequently poses a more severe hardship than any prison sentence would. Advising a client to plead guilty in an inappropriate case is ethically, and perhaps legally, professional malpractice. The criminal defense attorney should consult with immigration attorneys or examine secondary research sources to determine the immigration consequences of a guilty plea in any particular case.

Id. § 12.01, at 12-1 (1984).

Perhaps no one can attest better than the amici who submitted the NACDL amicus brief that these standards and resources are not merely aspirational, but reflective of the practice of competent defense counsel for many years, even before 1996. On a daily basis, amici and their practitioner members confront the uniquely difficult circumstances faced by their non-citizen clients, and have worked through the years to develop these professional standards and to educate and train fellow defense counsel how to effectively implement them.

Amicus the National Immigration Project of the National Lawyers Guild (NIP) is a prime example. Since 1986, it has offered free technical assistance to thousands of federal and state criminal defense lawyers from all 50 states in connection with their representation of non-citizens. In addition, NIP has conducted trainings – as have countless other criminal defense, immigration service, and bar association groups – on the immigration consequences of criminal convictions in 43 states, the District of Columbia, and Puerto Rico. These trainings have been attended by more than 5,000 practitioners from all 50 states.

Third, the professional standards and resources discussed herein initially arose before 1996 in response to immigration laws that historically imposed the harsh penalties of exclusion and deportation on steadily expanding categories and numbers of non-citizen defendants. For example, immigration laws have long made deportation virtually inevitable if not mandatory for non-citizens with convictions for certain drug offenses. This has included convictions for the possession of more than 30 grams of marijuana, which could render a non-citizen automatically deportable, and convictions for the possession of any amount of marijuana, which could render a non-citizen automatically excludable. See, e.g., INA § 212(h), 8 U.S.C. § 1182(h) (1981).

The amicus brief submitted by certain state Attorneys General (AG’s Brief) in support of the United States of America, makes an anemic and wholly unpersuasive attempt to argue that the Supreme Court should not rely on the ABA standards in this case because it may not have done so in other cases involving different issues, and the ABA standards purportedly “did not specify that defense counsel must advise their clients regarding deportation”. Brief for New Jersey, et al., in Chaidez v. United States of America, No. 11-820, at 16. The first argument is easily rejected because Padilla already held that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms. . . . as reflected in American Bar Association standards and the like.” Padilla, 130 S. Ct. at 1482 (internal citations omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). This issue is well-settled and is not being relitigated in Chaidez.

The second argument is wrong and sets up a classic straw man that is easily knocked down. It is wrong because the ABA standards and attendant commentary cited above, on which the Supreme Court relied in Padilla and St. Cyr, include commentary that expressly provides that a lawyer should advise a defendant about “immigration consequences.” ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2(f), cmt. at 126-27 (3d ed. 1999). Moreover, it adds that counsel “should be familiar with the basic immigration consequences that flow from different types of guilty pleas” because “it may well be that many clients’ greatest potential difficulty, and greatest priority, will be the immigration consequences of a conviction.” Id. The Court properly considered this commentary and its instruction to defense lawyers, and the AG’s Brief offers no valid reason to reject it.

The straw man is the suggestion that the only professional standards that are relevant here are the ABA standards. Padilla’s reliance on many other standards and resources refutes this mistaken point. 130 S. Ct. at 1485. The AG’s Brief, in unsuccessfully going to great lengths to try to discredit the ABA standards, basically ignores the countless other standards and resources that make obvious one essential truth: Under Strickland, and the professional norms to which it refers, it was plainly unreasonable in 2003, when Roselva Chaidez pled guilty, for her lawyer to fail to advise her about the immigration consequences of her plea.

The bottom line is this: The longstanding existence of the aforementioned, deeply rooted professional norms demonstrates that, for many years, counsel’s failure to advise a non-citizen defendant about the immigration consequences of a criminal plea constituted ineffective assistance of counsel under Strickland. Because Padilla did nothing more than straightforwardly apply Strickland’s ineffectiveness standard to assess counsel’s performance under prevailing professional norms, Padilla did not announce a “new rule” of constitutional law under the retroactivity framework of Teague v. Lane, 489 U.S. 288 (1989). Accordingly, it should apply to persons, like Ms. Chaidez, whose convictions were final before its announcement.

Craig Louis Siegel is a senior litigation associate at Kramer Levin Naftalis & Frankel LLP, a former lawyer for the Brennan Center for Justice at NYU School of Law, and Counsel of Record for the amici curiae that submitted the Brief of Amici Curiae National Association of Criminal Defense Lawyers, et al., in Chaidez v. United States of America, No. 11-820.