The Georgia Supreme Court took a strong stance in defense of the Sixth Amendment’s right to effective assistance of counsel recently when it held that advising a migrant defendant facing an aggravated felony conviction that he “could” be deported violated the U.S. Constitution. Encarnacion v. State, No. S14A0690, slip op. (Ga. September 22, 2014). Chief Justice Thompson wrote the court’s decision.
This case involved a migrant convicted by way of a guilty plea to burglary. The parties and the court agree that this is a burglary offense as defined for immigration law purposes, INA § 101(a)(43)(G), as such the court did not independently analyze the state statute.
The migrant’s plea-stage defense attorney told him that this conviction “may” affect his immigration status, that he “could” be deported, and, if he wanted more information about this, he should talk to an immigration attorney. Encarnacion, No. S14A0690, slip op. at 2. Encarnación argued that this violated his Sixth Amendment right to effective assistance of counsel as articulated in Padilla v. Kentucky, 559 U.S. 356 (2010).
The Georgia Supreme Court agreed. Immigration law, the court explained, “make[s] it clear that a conviction for an aggravated felony automatically triggers the removal consequence and almost always leads to deportation.” Encarnacion, No. S14A0690, slip op. at 6.
The court placed a great deal of emphasis on the severity of the aggravated felony label. As crImmigration.com readers know quite well, an aggravated felony conviction deprives a migrant of eligibility for most forms of relief from removal. A handful of mandatory forms of relief remain available, but these are exceedingly tough to get. Citing to my article Criminal Defense After Padilla v. Kentucky, 26 Georgetown Immigration Law Journal 475, 509 (2012), the Georgia court concluded, “unlike convictions for lesser crimes, when a noncitizen is convicted of an aggravated felony, he is ineligible for most statutory forms of discretionary relief.” Encarnacion, No. S14A0690, slip op. at 6-7.
More important than that holding is the court’s reasoning. Read closely, this opinion tells us a lot about how Georgia criminal defense attorneys should tailor their practice. The fact that some rare circumstance might exist under which a person convicted of an aggravated felony might escape removal does not alter the Padilla analysis, the court explained. Courts ought to be guided by the “core” activity that categories of removal target, I wrote in that 2012 article that the court cites. 26 Georgetown Immigration Law Journal at 504. “[T]he nuances that exist in the aggravated felony context…only color the margins of the offenses included.” Id. In that vein, the Georgia court announced that “[a]n attorney’s advice as to the likelihood of deportation must be based on realistic probabilities, not fanciful possibilities….It is not enough to say ‘maybe’ when the correct advice is ‘almost certainly will’.” Encarnacion, No. S14A0690, slip op. at 7.
Georgia criminal defense attorney’s should be on notice: relief from removal is almost always theoretically available no matter what crime a migrant faces, but that fleeting possibility doesn’t mean you don’t have to provide the clear advice about immigration consequences that the Padilla Court contemplated and that the Sixth Amendment requires. Unless there is “a realistic probability that his client would escape deportation,” a criminal defense attorney must advice that conviction will “almost certainly” result in removal. Id. at 9.
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