In 1997, Isabel Rodriguez Campos, a legal permanent resident (LPR), was arrested for misdemeanor theft (involving $50.00-$500.00), and for prostitution, both classified as Class B misdemeanors in Texas. She soon met her court appointed counsel who, aware of her immigration status, recommended that she plead guilty to both offenses, and received a probated sentence that was later revoked to a term of 60 days in jail.
Years later, Ms. Rodriguez discovered that as a result of her two convictions, she is deportable, albeit with the possibility of discretionary relief from an immigration judge (IJ). She attempted to have both her convictions set aside via post-conviction relief (Texas law requires that this be done by way of a writ of habeas corpus).
Relying on Padilla v. Kentucky, Ms. Rodriguez alleged that the failure of her plea counsel to properly inform her of the certain and automatic immigration consequences of her guilty pleas led her to enter an unknowing and involuntary plea. Specifically, she alleged that her plea counsel rendered ineffective assistance when he failed to advise her that a plea to the misdemeanor offenses of theft and prostitution would subject her to a certain finding of deportation/removal and immigration detention, because under 8 U.S.C. § 1227(a)(2)(B), which provides that an alien is deportable for having been convicted of two or more crimes of moral turpitude not arising out of a single scheme of criminal conduct. She added that, given her lifelong ties to the United States, had she known of her deportability, she would have urged counsel to dismiss one of her charges, and, barring that, would have proceeded to trial, rather than risk the chance of deportation, despite the immigration judge’s discretionary authority. For his part, plea counsel fully admitted that he had not, at the time Ms. Rodriguez was prosecuted (and for that matter, ever), done any immigration work; that, because each charge was a misdemeanor, he had no reason to believe that Ms. Rodriguez would be subject to deportation; that he had no independent recollection of having made inquiries about her immigration status; and that he did not advise her that her convictions would subject her to deportation proceedings.
After a hearing, the trial court acknowledged that plea counsel did not adequately inform Ms. Rodriguez of the consequences of a plea of no contest on her immigration status, but pointed out that during the plea, it had given her the routine statutory plea warning in Texas, under Section 26.13(4) of the Texas Code of Criminal Procedure, that “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” and denied post-conviction relief on both cases.
On appeal, the Texas Fourth Court of Appeals (Fourth Court), based in San Antonio, wrote:
In our view,  a deportation consequence analysis that includes the client’s eligibility for cancellation of removal is consistent with Padilla. When an LPR defendant is charged with an offense where the statute succinctly, clearly, and explicitly makes her removable, and the defendant is not eligible for cancellation of removal, her deportation  consequence—like Padilla’s—is truly clear. See Padilla, 130 S. Ct. at 1483. Thus, counsel has a duty to inform the defendant that she will be deported. But if she is eligible for cancellation of removal and counsel only advises her that she is subject to deportation and fails to also advise her that she may ultimately avoid deportation because she is eligible for discretionary relief, the attorney’s advice is at a minimum incomplete legal advice. See id. at 1491 (Alito, J., concurring) (“Incomplete legal advice may be worse than no advice at all because it may mislead and may dissuade the client from seeking advice from a more knowledgeable source.”).
See Ex Parte Isabel Rodriguez, 378 S.W.3d 486, at 493 (Ct. App. – San Antonio 2012). Despite acknowledging that counsel had rendered incomplete legal advice under Padilla, the Fourth Court’s reasoning continued as follows:
Because plea counsel cannot advise the defendant with any degree of certainty whether her removal will be cancelled, counsel’s duty to advise the defendant of her immigration consequences is much more circumspect. Section 1229b(a)’s terms that define the defendant’s eligibility  for cancellation of removal are explicit, but the defendant’s ability to obtain the relief is not so straightforward. See id. at 1483 (majority opinion) (recognizing “the law is not succinct and straightforward” in many situations). Therefore, the final result—whether the LPR defendant will actually be deported—will depend on whether the defendant is granted discretionary relief from removal. See id. at 1490 (Alito, J., concurring) (noting that “the immigration consequences of a criminal conviction” include the question of whether the noncitizen defendant is “eligible for relief from removal” (internal quotation marks omitted)). Cancellation of removal in turn depends on numerous factors and the decision to grant relief rests in the immigration judge’s discretion. (citations omitted). Because the final result of the defendant’s plea depends on relief that may or may not be granted, the defendant’s eligibility for cancellation of removal makes the deportation consequence unclear or uncertain. See Padilla, 130 S. Ct. at 1483.
 Considering the discretionary nature of cancellation of removal and its effect on the LPR defendant’s plea, we believe that an LPR defendant’s eligibility for cancellation of removal makes the defendant’s deportation consequence not truly clear. We hold that the analysis to determine whether a deportation consequence is truly clear must include the question of the LPR defendant’s eligibility for cancellation of removal.…If an LPR defendant’s deportation consequence is not truly clear, the plea attorney’s duty to advise the client on the immigration effects of the plea is limited. See Padilla, 130 S. Ct. at 1483. The LPR defendant’s attorney “need do no more than advise [the] noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. ; Ex parte Rodriguez, 350 S.W.3d 209, 211 (Tex. App.—San Antonio 2011, no pet.).
Rodriguez, 378 S.W.3d at 493-494. The Appellate Court denied rehearing, and Petitioner filed a petition for discretionary review to the Texas Court of Criminal Appeals, which was refused on April 17, 2013. Petitioner filed a petition for certiorari to the United States Supreme Court, which was denied on December 9.
The important issue in Ms. Rodriguez’s case is the Supreme Court’s failure to specifically address when a “deportation consequence” of a plea is sufficiently “truly clear” so as to create a duty by a lawyer to advise a non-citizen defendant about the immigration consequences of a plea of guilty. The state court that decided her case determined that the clarity of the deportation consequence becomes “true” only where the non-citizen has no chance for discretionary relief from deportation. This reading of Padilla’s holding is flawed, as it misses the crux of the decision, that is, that ultimately it is up to the client to determine whether, in light of their deportability, they will proceed with the plea process in hopes of getting discretionary relief, or, barring plea negotiations that would remove her deportability altogether, be risk averse, and elect to proceed to trial. The issue has not been addressed by the Supreme Court.
The Court has misread Padilla’s use of the phrase “deportation consequences,” and has misapplied it to Ms. Rodriguez’ case, and for that matter, to all other cases where a non-citizen, although deportable, is nevertheless theoretically eligible for discretionary relief from deportation, and threatens to deny Padilla’s mandate from protecting an entire category of non-citizen defendants whose conviction-based deportation is subject to an immigration judge’s authority to grant discretionary relief.
Perhaps because it is impossible to predict how removal proceedings will conclude, nothing in Padilla mandates, or even suggests, that proper immigration advice requires a lawyer to ideate the end result of the immigration proceedings, that is, whether a client will ultimately receive any relief from deportation from an immigration judge. This is not, and cannot be a part of the “deportation consequence” inquiry. To illustrate this point, it is worthwhile to consider the immigration consequences that Jose Padilla, the petitioner in Padilla, faced following his guilty plea. Although Mr. Padilla was convicted of a felony drug trafficking offense that precluded him from discretionary relief from deportation, Padilla did not focus on whether Padilla’s removal was guaranteed to occur in determining the propriety of the advice, but on the fact that Jose Padilla’s conviction made him deportable, and precluded him from discretionary relief from deportation under the immigration laws. See generally Padilla. The Fourth Court’s logic fails when one considers that, as in Jose Padilla’s own case, despite the non-existence of discretionary relief by a judge to grant him relief, those in his situation – categorized as “Aggravated Felons” – are still eligible to obtain relief from deportation from provisions such as the Convention Against Torture Treaty (8 CFR § 208.17). Plainly put, a non-citizen’s deportability, even under the worst of circumstances, is never an absolute certainty.
Professor César Cuauhtémoc García Hernández has proposed a framework to discharge the duty imposed by Padilla under the Sixth Amendment’s duty that criminal defense attorneys owe to noncitizen defendants. See Criminal Defense after Padilla v. Kentucky, 26 Geo. Immigr. L.J. 475, 488 (2012). He writes:
Padilla requires criminal defense attorneys to engage in two lines of inquiry: (1) they must investigate a client’s citizenship status and (2) determine whether a client will be removable if convicted. The first inquiry, determining a client’s citizenship status, turns on an attorney’s duty to conduct a reasonable investigation of the law and facts of a defendant’s legal predicament. The second inquiry, determining removability and advising accordingly, depends on the clarity of the relevant statutory language–specifically, the clarity of the language describing the consequence (deportation) and the clarity of the language describing which crimes result in deportation. A close reading of the decision suggests that neither is a simple endeavor. Both, however, are manageable burdens for criminal defense attorneys.
Id. García Hernández concludes that the threshold requirement for defense attorneys is to conduct a reasonable investigation of the client’s citizenship status, adding that “[i]gnorance of immigration concerns will not satisfy Padilla.” Id. at 494.
Counsel for Ms. Rodriguez did neither, and yet, the Fourth Court concluded that the trial court’s warning that Ms. Rodriguez might suffer adverse immigration consequences satisfied Padilla’s mandate simply because Ms. Rodriguez possessed the ability to receive discretionary relief from an immigration judge, despite the fact that ultimately, the immigration judge may well deny discretionary relief, and rule that Ms. Rodriguez should be removed. Ms. Rodriguez submits that Padilla required that her counsel inform her of the discretionary nature of the removability, so that she could then have made a fully informed decision as to whether she would take a chance at trying to convince an immigration judge that she should be spared deportation, or be risk averse and elect another resolution of her case. Either way, the choice was for her to make, and counsel deprived her of the ability to do so.
As to the trial court’s own general admonishment during the plea colloquy, it doesn’t serve the same function as counsel’s advice, in part, because it is not advice at all, and further, because it fails to afford sufficient time for the Defendant to consider the risks. This has been observed in a recent opinion by the Fifth Circuit. In United States v. Tanguma-Marroquin, No. 11-40256 (5th Cir. 2012) (unpublished), Justice James Dennis wrote a concurring opinion that sagely analyzes, and puts front and center, Ms. Rodriguez’s complaint. Justice Dennis fully supports a lawyer’s duty, independent of the Court’s own obligation under the 14th Amendment (to ensure compliance with due process) to give advice about the immigration consequences of a plea, coupled with the lawyer’s obligation to attempt to craft a plea agreement that reduces the chances of a non-citizen client’s removal, a concept that has been reaffirmed after the Supreme Court’s rulings in Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) and Missouri v. Frye, 132 S. Ct. 1399 (2012). Dennis submits that any warning about possible – or even certain – removal consequences of a guilty plea given by a judge during a defendant’s plea colloquy cannot supplant a lawyer’s independent obligation to give full and competent immigration advice at a time previous to the plea. He flatly rejects the position that any such warning by a judge during the plea colloquy eliminates the prejudice under that prong of the Strickland test.
Jorge G. Aristotelidis is a partner at De Mott, McChesney, Curtright, & Armendáriz LLP in San Antonio. He represented Ms. Rodríguez before the Texas Court of Appeals and in her request for review by the U.S. Supreme Court.