Padilla v. Kentucky

Padilla should apply to all migrants

Of all the protections guaranteed by the United States Constitution, the right to counsel is arguably the most important. As the Supreme Court famously declared in Gideon v. Wainright, a criminal defendant simply cannot be “assured a fair trial unless counsel is provided for him.” Subsequent holdings also established that the right to counsel does not merely afford criminal defendants the euphemistic “warm body with a law degree.” Instead, the Sixth Amendment guarantees defendants the right to “the effective assistance” of counsel as well—both during trial and in pre-trial plea [...]

Crimmigration defense counsel

The boundary between criminal law and immigration law has been blurring for decades. The Anti-Drug Abuse Act of 1988, for example, formed a core part of the early war on drugs, as its title suggests. It also introduced the aggravated felony into immigration law, altering the lives of hundreds of thousands of migrants in the three decades that followed. Two years later, the Immigration Act of 1990 revamped immigration law. Yet when he signed it, President Bush declared it to be a central component of his administration’s attempt to curtail illicit drug activity. But it wasn’t until 2006 that [...]

California Supreme Court decision opens breathing room for migrants, alters typical political lineup

Last week, the California Supreme Court issued an important decision expanding the ability of migrants given poor advice about the immigration consequences of a conviction to obtain relief. In People v. Patterson, No. S225193, slip op. (Cal. March 27, 2017), the court unanimously held that a migrant isn’t barred from withdrawing a guilty plea that results in mandatory immigration detention and deportability simply because the plea form stated that conviction “may” result in adverse immigration consequences. Pursuant to Cal. Penal Code § 1016.5, all defendants are provided this generic [...]

Crimmigration and race conversations

The Crimmigration Law Lecture Series that began last week at the University of Denver took to heart the desire to engage with this emerging area of law in an innovative manner. Bringing together senior scholars, junior scholars, practitioners, and even the petitioner in a landmark Supreme Court case, the lecture series tackled history, politics, and the realities of law enforcement in three well-attended sessions. Given the presidential election cycle that we’re currently in the midst of, the series began by focusing on how race has altered the development of crimmigration law, as well as [...]

Justice Scalia’s Crimmigration Legacy

Andrea Sáenz Supreme Court Justice Antonin Scalia’s recent passing has spurred a wealth of commentary about his career and legal philosophy, including the recognition that the legendary conservative jurist issued a number of rulings sympathetic to criminal defendants [see here, here, or here]. What have attracted less notice so far are his consistent votes for noncitizens in cases involving the immigration consequences of criminal convictions, or for defendants in cases involving the sentencing consequences of prior convictions. In both types of cases, Scalia was an extremely reliable vote [...]

Mass. Expands “Reasonable Inquiry” for Criminal Defense Counsel

By Thamys Gaertner In October 2015, the Supreme Judicial Court of Massachusetts expanded on the duty of criminal defense attorneys’ to reasonably inquire into clients’ immigration status in cases involving refugees or asylees. Pavel Lavrinenko immigrated to the United States with his family as a refugee in 2000. Commonwealth v. Lavrinenko, 38 N.E.3d 278, 282-83 (Mass. 2015). The family fled Russia to escape religious persecution by the Russian government. Id. On April 10, 2005, Mr. Lavrinenko crashed into a lamp post while driving intoxicated, leading officers to a foot pursuit into a [...]

Utah Supreme Court: When all else fails, civil procedure can remedy ineffective assistance of counsel

By Sarah Flinn Sergio Meza filed an action under Utah state law for ineffective assistance of counsel after learning of the immigration consequences for his no contest plea to two drug charges pursuant to a plea in abeyance agreement. Meza v. State, 2015 WL 4878268, at *1 (Utah Aug. 14, 2015). Mr. Meza asserted that he had a right to relief under the Post-Conviction Remedies Act of Utah (PCRA) due to the ineffective assistance of counsel, namely, the failure of his attorney to advise him of the immigration consequences of his plea. Id. The Supreme Court of Utah ultimately concluded that Mr. [...]

Defining crimmigration law: Part II

Last week I began constructing a working definition of “crimmigration law.” For all its currency in recent years, the reality is that the phrase largely goes undefined—as if we’re supposed to know it when we see it. In the six years that I’ve been writing about crimmigration law, I have been as guilty of doing this as anyone so I’m certainly not pointing fingers. Instead, I’m trying to bring some theoretical coherence to doctrine that evolves rapidly across jurisdictions. As I wrote last week, one major aspect of crimmigration law as I see it is the frequency with which criminal [...]