By now, crImmigration followers are well aware of the test the Supreme Court set out in Padilla v. Kentucky, 130 S. Ct. 1473 (2010): when deportation is clearly going to result from conviction, the criminal defense attorney must tell her client as much, but “[w]hen the law is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”
This framework, I write in a new article, is highly problematic. Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens, 72 Maryland Law Review 844 (2012). Rather than require that criminal defense attorneys thoroughly investigate the law and facts relevant to their client’s predicament as the Court’s ineffective assistance of counsel caselaw has long required and as lower courts have applied in countless cases, Padilla created a “Strickland-lite” framework. As I explain in the article’s abstract, “Under Strickland-lite, the Court failed to require that criminal defense attorneys investigate the law and facts relevant to immigration consequences as fully as it has long required attorneys to do when investigating other aspects of a criminal case, including even immigration law provisions central to guilt or punishment.” This approach, I argue, “conflicts with Strickland’s mandate and fails to remedy the problem of inaccurate advice for noncitizen criminal defendants that Padilla purports to remedy.”
I hope you’ll take a look and let me know what you think through the blog’s comments feature.
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This requires far too much of a criminal defense attorney. Immigration law is very complex and may even vary from 1 circuit to another. I practice solely in state court. I tell my no-citizen clients that conviction may result in deportation and they need (if they are locked up then their families) to retain an immigration attorney. Your position would make the practice of criminal law involving non-citizens untenable. If that were the state of the law I would just refuse non-citizen clients. The chance of ineffective assistance and/or malpractice would just be too high.
In state cases our fees are not that high to allow the time to b spent to become immigration lawyers. I currently represent a lpr on a burglary charge. My fee is $3000 and the case involves significant research, writing and litigating a motion, cross examining a fingerprint “expert” as well as at least 12 court appearances. I am tempted to get nasty about your attitude but will not. It is unrealistic, does a disservice to our clients and to the lawyers practicing criminal law. The Supreme court’s position on this is correct.
By the way there are lots of other collateral consequences to conviction”\: loss of jobs, housing, ability to get many jobs that have bonding requirements to name a few. Many convictions require registration and some carry the risk of civil confinement for life after a sentence is served. I assume you would expect the criminal defense attorney to be experts in all those areas as well or does this just apply to the area you are interested in?.
Stu,
I appreciate your comment. I agree that my interpretation of the Strickland line of cases places a more significant burden on criminal defense attorneys than does Padilla. I’m not so much interested in forcing criminal defense attorneys to become immigration attorneys (an article I published in the Georgetown Immigration Law Journal goes into much more detail on just what, in my view, Padilla requires of criminal defense attorneys). My goal is instead to point out that the Supreme Court took the ineffective assistance doctrine articulated in Strickland and its progeny and, though it said it was just applying that to deportation, actually created a lower threshold for IAC claims involving immigration consequences. This, I think, is disingenuous on the Court’s part. If this is too much to ask of criminal defense attorneys, then the problem lies with legislatures–in particular, Congress–that have tied criminal law and immigration law so closely over the last 25 years or so. I wish criminal law didn’t implicate immigration law, but reams of statutory enactments have deeply entangled these, as the Padilla Court recognized for the first time. Just like Congress did that it also has the power to disentangle these areas. If it were to do so criminal defense attorneys wouldn’t have to worry about advising noncitizen defendants about possible immigration consequences. Despite my interest in crImmigration law, that would please me greatly.
As for your point about collateral consequences, I completely agree. There are thousands upon thousands of collateral consequences that result from conviction. The ABA, as you may know, is in the process of compiling a freely available database that promises to be quite helpful. Padilla, though, doesn’t necessarily apply to those, as some courts have started to conclude. I think there is some basis for concluding that “deportation is different” (to use Peter Markowitz’s term) in the majority opinion. Justice Stevens, who wrote the opinion, explained that deportation is “unique.” Slip op. at 8. We don’t have to agree with his assessment, but he wrote for 7 justices so we have to at least grapple with it. If Padilla is to apply outside the deportation context, how do we get around this language? (As you may know, I wrote an essay a year or two ago arguing that Padilla doesn’t apply to all noncitizens, and in a separate article in the Georgetown Immigration Law Journal I wrote that it doesn’t apply to all immigration consequences.)
Lastly, let me thank you for resisting the temptation “to get nasty.”
I too will try to refrain from being “nasty” but in sincerity and honesty will say the following. Nobody is forcing you to take criminal defense clients who are not US Citizens. If the onus on investigating the Immigration consequences of any potential criminal conviction is too much work, requires you to learn Immigration law which you are unwilling to do, increases your liability beyond your comfort level, or is not worth the fee you can collect, then you really need to refer those clients to criminal defense practitioners who are willing to do that work or who also do Immigration work. I see too many clients lives ruined by criminal defense attorneys who feel that is not their responsibility (not implying you, just in general) and then plea out their clients to deportable offenses, some of which are irreversible and make their clients inadmissable for life. The immigration consequences many times are so much worse than any jail sentence or probation sentence, you owe it to them to either find out the answer or refer them elsewhere. We all got in this business hopefully to see justice done, and really serve our clients by seeking to help them through their legal problems with an eye towards helping them meet their goals and make their lives better.
It is not unrealistic to learn both. I have done it and others have as well. Quite frankly your dismissive attitude about probably the most important aspect of your client’s life, is – well I’ll be nice here – very frustrating to me.
Yes, it takes more work, but that client has come to you entrusting the most important thing in his life – his ability to stay in the U.S. and be with his family – he has entrusted that to you. You have a legal, ethical and I would argue moral obligation to see that through, and if you can’t refer the case out.
Many of these immigrant clients were not educated in the U.S., many of them are not very educated even by their own country’s standards, and in their ignorance to our confusing legal system, are counting on us to advise them correctly, and counsel them accurately on the very real risks they face. I believe we owe it to them.
And again, I can understand that being too much of a hassle and burden for some, and I strongly implore you to refer those cases to someone who can offer that service.
Respectfully,
Jeff Peek
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crImmigration.com: Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens
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