Migrants are prejudiced, the Virginia Supreme Court held, when their criminal defense attorneys fail to provide advice that would objectively lead them to turn down a plea offer whether or not the evidence of guilt is strong. Zemene v. Clarke, No. 140719, slip op. (Va. 2015). Students from the Immigrant Justice Clinic at American University Washington College of Law successfully argued this case under the supervision of their outstanding professor Jayesh Rathod.
This case concerned a lawful permanent resident who was convicted of petit larceny stemming from an incident in which he was accused of shoplifting $33 of beer. Id. at 2-3. As a result, he was sentenced to twelve months incarceration, all of which was suspended. Id. at 4. Soon thereafter DHS initiated removal proceedings against Zemene claiming that his conviction constituted an aggravated felony—specifically, under the aggravated felony definition that covers theft offenses for which a term of imprisonment of at least one year was imposed. Id. at 4-5.
Instead of contesting that claim, Zemene sought to attack the validity of the conviction itself. His trial counsel, Zemene argued, violated Zemene’s Sixth Amendment right to effective assistance of counsel by failing to advise Zemene about the possible immigration consequences of conviction.
After Padilla v. Kentucky, 559 U.S. 356 (2010), criminal defense attorneys are obligated to advise noncitizen defendants about the immigration consequences of conviction. Claims that they failed to do so turn on the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984): was the trial counsel’s performance below what was required by prevailing professional norms (called the deficient performance prong) and, if so, did that deficient performance actually prejudice the defendant (the prejudice prong)?
The Virginia Supreme Court had no trouble concluding that Zemene’s trial attorney provided constitutionally deficient representation for a number of reasons. Even though Zemene told the attorney that he was not a United States citizen, the attorney didn’t investigate the potential immigration consequences of a conviction, didn’t raise the issue in plea negotiations with the prosecutor, and didn’t discuss this with Zemene. Zemene, No. 140719, slip op. at 14.
The more difficult question facing the court was whether this constituted prejudice. The government argued that Zemene could not show he was prejudiced by his trial counsel’s poor performance because he “articulated no defenses to his crime and did not challenge the sufficiency of the evidence to support his guilty plea.” Id. at 17.
The Virginia Supreme Court disagreed. “Zemene need not demonstrate a likelihood of acquittal at trial,” the court announced. Id. at 18. Rather, “the correct inquiry is whether the defendant would have ‘gone to trial in the first place’ because he ‘might rationally be more concerned with removal than with a term of imprisonment’.” Id. at 18-19 (quoting United States v. Orocio, 645 F.3d 630, 643 (3d Cir. 2011)) (see my analysis of Orocio here). Given Zemene’s concern about remaining in the United States, the court concluded, it would have been objectively reasonable for Zemene to have turned down the plea offer that led to his deportability and instead have taken his chances at trial. Id. at 19.
This is a significant holding. Some courts have come to an opposing conclusion—that prejudice requires proof that acquittal would’ve been likely at trial or that the sentence wouldn’t have been greater than the sentence obtained by plea (see my previous blog analyses of such cases here and here). Those, of course, are terribly difficult standards to meet. More importantly, they dismiss the Padilla Court’s concern that migrants, especially long-time LPRs, not find themselves facing removal blindly. The Virginia decision is therefore refreshing. But it’s not entirely alone. For an example of an earlier decision from a New York state court coming to a similar conclusion as the Virginia Supreme Court, see my analysis here.
Congratulations to the Immigrant Justice Clinic’s students and faculty. The American University students were assisted by local Virginia counsel Scott Seguin.
Find this information useful? Then let others know about crImmigration.com, as well as César’s Twitter, Facebook, and LinkedIn pages. And to make sure you don’t miss an update, subscribe to the blog by entering your email address in the subscription box that appears on every page.