The U.S. Supreme Court’s landmark decision in Padilla v. Kentucky, 559 U.S. 356 (2010), holding that the Sixth Amendment right to effective assistance of counsel obligates criminal defense attorneys to inform migrant clients about the immigration consequences of conviction continues to resonate in the state courts. Just last month the Wisconsin Supreme Court issued two decisions gutting Padilla’s applicability in that state (see my analysis of those decisions here). Now, it seems, Texas may be preparing to follow Wisconsin’s lead.
The Texas Court of Criminal Appeals, the highest criminal court in the state, is expected to decide just what an attorney is required to tell a migrant defendant to satisfy the Sixth Amendment requirement of objectively reasonable advice. The court agreed to review a lower court opinion from the El Paso division of the Texas Court of Appeals that came down strongly in support of clear-cut, precise, and well-informed advice. This trajectory makes me wary.
Building off Padilla, that earlier decision set a reasonable and thoughtful bar for criminal defense attorneys whose clients face aggravated felony or drug charges: “Merely stating that removal proceedings could ensue after a guilty plea to an aggravated felony or drug offense is ineffective in mandatory removal cases; counsel must clearly state that pleading to the offense will result in removal.” Ex Parte Torres, No. 08-12-00244-CR, 2014 WL 1168929 (Tex. Ct. App. March 21, 2014).
This is not to say that a criminal defense attorney is required to play clairvoyant and pretend to know what ICE or an immigration judge will do once the matter gets into their hands, as the Wisconsin Supreme Court suggested. Instead, as the Texas lower court’s decision illustrates, a defense attorney with a client facing these types of charges is required “to advise a client that a plea to any of these crimes will make him or her presumptively deportable.” Id. at *5. Failure to do that for a migrant who was raised almost entirely in the United States and who might have been eligible for cancellation of removal if his attorney had pursued a plausible immigration-safe plea constitutes sufficient prejudice to violate the Sixth Amendment. See id. at *6. This is, to be quite blunt, a very favorable decision for migrant criminal defendants that faithfully follows Padilla.
I’m particularly concerned that an opinion reversing the lower court’s opinion will have a substantial detrimental effect on Padilla’s power to raise the bar of zealous advocacy migrant defendants receive. Defense attorneys, the U.S. Supreme Court has made quite clear, owe their clients a duty to investigate the law and facts relevant to their legal problems. As I wrote in the Maryland Law Review,
Thorough investigation, the Court explained in Strickland and several subsequent decisions, allows the attorney to make ‘strategic choices’ about the best defense strategy. Choices made after ‘less than complete investigation of the relevant law and facts’ or a ‘reasonable decision that makes particular investigations unnecessary’ deprive the defendant of the counsel guaranteed under Strickland.
César Cuauhtémoc García Hernández, Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens, 72 Maryland Law Review 844, 850 (2013).
Let’s be clear about what the Wisconsin Supreme Court did last month. By providing constitutional cover to two attorneys who did not even read the text of the statutes that resulted in their clients’ removability, the Wisconsin court eviscerated the duty to investigate. The Texas case involves a similar situation. The plea-stage defense attorney “admitted that he had never independently reviewed the Immigration and Nationality Act and did not know what constituted deportable offenses under the Act other than what he learned ‘at seminars.’” Ex Parte Torres, 2014 WL 1168929, at *2.
I have attended and spoken at many continuing legal education seminars from which I’ve benefited greatly. Nothing I’ve ever learned there, however, substitutes for doing my own legal research. (Note to readers: Nothing you ever read on this blog, my scholarly articles, or my book should substitute for your own legal research either.) The bottom line is that defense attorneys owe their clients a duty to reasonably investigate the law that might subject them to removal. It saddens me to no end that Wisconsin now permits lawyers to satisfy this duty without so much as reading the words of the relevant law. Here’s hoping that the Texas justices don’t follow suit.
I don’t have high hopes. Just two years ago, the Court of Criminal Appeals followed the U.S. Supreme Court’s lead in Chaidez v. United States, 132 S. Ct. 2101 (2012), substantially limiting Padilla’s ability to help migrants with old convictions (see my analysis of that Texas decision). Five of the nine justices currently on the Texas Court of Criminal Appeals joined that opinion. That recent history leads me to worry.
The court did not hear arguments in this case. Though I only learned of this case recently thanks to crImmigration.com reader Steve Spurgin, a Texas lawyer, the court has had the briefs in front of it for several months. In addition to the parties’ briefs, the National Immigration Project of the National Lawyers Guild and Texas Fair Defense Project jointly filed an amicus brief (available here) in support of Mr. Torres.
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