In a well-reasoned and crisply written decision, the U.S. Court of Appeals for the Ninth Circuit bolstered the Sixth Amendment right to counsel for migrant defendants recently. In United States v. Rodriguez-Vega, No. 13-56415, slip op. (9th Cir. Aug. 14, 2015), a three-judge panel held that a defendant who was provided less-than-clear advice about the immigration consequences of conviction was denied the effective assistance of counsel that the Sixth Amendment guarantees.
This case involves a twenty-two year-old lawful permanent resident who was convicted of misdemeanor attempted transportation of unauthorized migrants, a federal crime. 8 U.S.C. § 1342(a)(2)(A), INA § 274(a)(2)(A). The INA explicitly identifies a conviction for this offense as an aggravated felony. INA § 101(a)(43)(N) (providing that “an offense described in paragraph (1)(A) or (2) of section 274(a) (relating to alien smuggling)” is an aggravated felony).
Despite that clearly written aggravated felony definition, Rodriguez-Vega’s plea-stage attorney told her “that there was a potential to be deported.” Rodriguez-Vega, No. 13-56415, slip op. at 7. The Ninth Circuit had little trouble concluding that this fell short of the Sixth Amendment’s requirement that her defense attorney “advise her that her conviction rendered her removal virtually certain, or words to that effect.” Id. at 9.
In reaching this holding, the Ninth Circuit is on solid ground. The U.S. Supreme Court’s landmark decision Padilla v. Kentucky, 559 U.S. 356, 369 (2010)—a case that takes center stage in chapter 5 of my book Crimmigration Law—undeniably commands that “when the deportation consequence [of conviction] is truly clear…the duty to give correct advice is equally clear.”
Rodriguez-Vega’s plea-stage attorney came much closer to doing just that—only it came too late. At the sentencing hearing, the attorney described the smuggling offense as “probably considered an aggravated felony.” Rodriguez-Vega, No. 13-56415, slip op. at 6. By that point Rodriguez-Vega had already been convicted and any hope of acting on this much clearer advice rested on the judge’s willingness to allow her to withdraw her plea. In an interesting twist, however, the Ninth Circuit suggests that it wouldn’t have been swayed by this more detailed advice had it occurred earlier. This, the court explained in dicta, “fails to state accurately the plain and clear status of the law.” Id. at 17. Though in the typical situation I might be inclined to disagree with the court’s suggestion that telling a defendant that conviction will “probably” lead to presumptively mandatory removability, I think the Ninth Circuit made the correct call here because the INA leaves no doubt that this offense is an aggravated felony.
Having concluded that Rodriguez-Vega’s plea-stage attorney provided constitutionally deficient representation, the court moved to consider whether that poor advice prejudiced her. It did. Though the Padilla Court didn’t apply the prejudice standard, it did explain that prejudice turns on whether “a decision to reject the plea bargain would have been rational under the circumstances.” 559 U.S. at 372. In the Ninth Circuit’s eyes, Rodriguez-Vega showed this in multiple ways. First, she pointed to four recent cases in which defendants who were initially charged with the same offense she pleaded to were later allowed to plead to an offense that avoided removability. Rodriguez-Vega, No. 13-56415, slip op. at 12. Second, she showed that she was very much driven to accept the plea she took because she thought it limited her exposure to immigration difficulties, thus there’s reason to believe that she would have turned down the plea she actually accepted had she been properly advised. Rodriguez-Vega, No. 13-56415, slip op. at 13. Third, the court concluded that it would have been reasonable for a young LPR to take the risk of a trial if she had known that separation from her family and the end of her life in the United States was virtually certain upon conviction. Rodriguez-Vega, No. 13-56415, slip op. at 14-15.
Though this prejudice analysis appears straightforward, it’s not necessarily so. A number of courts have much more stringent views of prejudice post-Padilla. As I write in Crimmigration Law (p. 130), “Some courts have held that no rational defendant would have turned down a plea offer when the evidence of guilt was quite strong and conviction after trial would have potentially resulted in much more jail time than pleading.” Instead, the Ninth Circuit took a much more nuanced approach that balances the potential losses migrant defendants face: loss of liberty through imprisonment versus loss of the ability to continue living in the place they call home.
While that would have been enough to mark this case as an important buttress for migrant defendants, the Ninth Circuit panel took the opportunity to make a couple of quick comments worth noting. First, the court minimized to the point of irrelevancy the possibility that Rodriguez-Vega might remain eligible for some types of relief from removal. Rodriguez-Vega, No. 13-56415, slip op. at 9. The possibility of relief through an exception to the aggravated felony definition, withholding of removal, or protection under the Convention Against Torture, the court explained, “does not alter our conclusion that on the record before us her removal was virtually certain.” Rodriguez-Vega, No. 13-56415, slip op. at 9. This strikes me as the best reading of Padilla. In that decision, as I explain on page 128 of Crimmigration Law, the Court took the position that Mr. Padilla’s conviction led to presumptively mandatory removal despite the possibility that he remained eligible for relief.
Secondly, the Ninth Circuit noted that the trial court’s admonishment to consider the possibility of adverse immigration consequences can’t cure deficient representation by Gutierrez-Vega’s attorney. Rodriguez-Vega, No. 13-56415, slip op. at 9. I write about this phenomenon extensively in Crimmigration Law. The bottom line is that “judicial admonishments are intended to realize the Due Process Clause’s concerns that the defendant entered a plea knowingly, voluntarily, and intelligently” (p. 135-36). In contrast, the Sixth Amendment right to counsel imposes on attorneys a separate obligation to vigorously advocate for clients by employing reasonable means. Judges simply don’t have the time to advocate for defendants and our system of criminal proceedings isn’t designed in such a way that we should want that. In concluding that the trial court’s admonishment is irrelevant to the ineffective assistance of counsel claim, the Ninth Circuit added to the growing majority of courts taking that position (see Crimmigration Law, page 135).
All in all, a strong win for migrant defendants.