GA Supreme Court: “Could” be deported isn’t good enough for aggravated felony conviction

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 § [...]

7 Cir: Padilla & Chaidez don’t differentiate between no advice & bad advice; neither merits retroactive application of Sixth Amendment

The U.S. Court of Appeals held that the Sixth Amendment right to receive advice about the immigration consequences of a conviction does not apply prior to March 31, 2010 whether the criminal defense attorney affirmatively provided incorrect advice or simply failed to say anything about possible immigration consequences. Chavarria v. United States, No. 11-3549, slip op. (7th Cir. Jan. 9, 2014) (Cudahy, Ripple, and Hamilton, JJ.). Judge Cudahy wrote the panel’s opinion. This case involved an LPR who was convicted in 2009. After the Supreme Court announced in Padilla v. Kentucky 559 U.S. 356 [...]

TX Appellate Ct: When is deportation consequence “truly clear” for Padilla?

By Jorge G. Aristotelidis In 1997, Isabel Rodriguez Campos, a legal permanent resident (LPR), was arrested for misdemeanor theft (involving $50.00-$500.00), and for prostitution, both classified as Class B misdemeanors in Texas. She soon met her court appointed counsel who, aware of her immigration status, recommended that she plead guilty to both offenses, and received a probated sentence that was later revoked to a term of 60 days in jail. Years later, Ms. Rodriguez discovered that as a result of her two convictions, she is deportable, albeit with the possibility of discretionary relief [...]

Padilla cert petition on SCOTUS conference agenda

The U.S. Supreme Court will consider whether to hear a case about the contours of Padilla v. Kentucky, 559 U.S. 356 (2010), when it meets on Friday. Longtime LPR Isabel Rodríguez is asking the Court to overturn a Texas state court’s conclusion that eligibility for cancellation of removal means her removal was not “truly clear.” Rodríguez v. Texas, No. 13-5860 (U.S.). The lower court decision, Ex Parte Rodríguez, Nos. 04-11-00038-CR, 04-11-00039-CR, 2012 Tex. App. LEXIS 3207 (Tex. Ct. App. April 25, 2012), stemmed from convictions for theft by check and prostitute. According to the Texas [...]

Mass. High Court Breathes New Life into Padilla in Commonwealth v. Sylvain

By Christopher N. Lasch In an important decision last week the Massachusetts Supreme Judicial Court (SJC) confirmed it will continue to part ways with the United States Supreme Court over the retroactive application of the Supreme Court’s 2010 decision in Padilla v. Kentucky, 559 U.S. 356, requiring effective crimmigration counsel. In February, the U.S. Supreme Court issued Chaidez v. United States, 133 S. Ct. 1103 (2013), holding Padilla is not to be applied retroactively. Chaidez (summarized here in February) was a disappointment on any number of levels, as was discussed extensively on [...]

Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens

By now, crImmigration followers are well aware of the test the Supreme Court set out in Padilla v. Kentucky, 130 S. Ct. 1473 (2010): when deportation is clearly going to result from conviction, the criminal defense attorney must tell her client as much, but “[w]hen the law is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” This framework, I write in a new article, is highly problematic. Strickland-Lite: Padilla’s Two-Tiered Duty for Noncitizens, [...]

Criminal Defense After Padilla v. Kentucky

In the three-and-a-half years since the Supreme Court recognized that the Sixth Amendment right to counsel requires advice about the deportation consequences of conviction in the landmark Padilla v. Kentucky, 130 S. Ct. 1473 (2010), courts and commentators have had a lot to say about its impact. Without question, nothing has been more important than the Supreme Court’s decision last term in Chaidez v. United States, No. 11-820, slip op. (U.S. 2012), in which the Court refused to apply Padilla’s holding retroactively. Despite a second round at the Supreme Court, though, not much has appeared [...]

Tx Ct Crim App: Right to counsel properly waived despite not being told about deportation possibility

The Court of Criminal Appeals of Texas, the state’s highest criminal court, held that a person who waived his right to an attorney in a misdemeanor drug possession prosecution did not do so impermissibly despite not having been told that he might be deportable upon conviction. State v. Guerrero, No. PD-1258-12, slip op. (Tex. Crim. App. June 5, 2013) (Cochran, Keller, Price, Womack, Johnson, Keasler, Hervey, and Alcala, JJ.). Judge Cochran wrote the court’s opinion. This case presents like the picture of interior immigration enforcement in the age of crImmigration law. The defendant entered [...]