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 [...]

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. [...]

9 Cir takes strong stance on right to effective assistance of counsel

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 [...]

Is Texas going to make it harder for migrants to receive effective assistance of counsel?

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 [...]

WI Supreme Court guts Padilla v. Kentucky

In two cases released the same day, the Wisconsin Supreme Court made it much more difficult for migrants to demand the effective assistance of counsel that the Sixth Amendment entitles them and all defendants in criminal prosecutions to receive. See Padilla v. Kentucky, 559 U.S. 356 (2010). In the process, the court revealed serious misunderstandings of constitutional law and a subtle but perceptible inclination toward rightwing legal claims credited by federal judge Andrew Hanen who presided over major attacks against President Obama’s immigration executive actions. Both decisions begin [...]

7 Cir: Migrant defendants entitled to roll the dice with a jury

Migrants facing criminal prosecution can turn down a plea offer and elect to go to trial no matter how good the plea deal, the U.S. Court of Appeals explained recently. DeBartolo v. United States, No. 14-3579, slip op. (7th Cir. June 26, 2015). Any ineffective assistance of counsel suffered along the way isn’t absolved simply because they turned down a perfectly good plea offer. This case involved an Italian citizen with a string of low-level drug convictions. His last eventually resulted in his deportation. Along the way, however, he was denied the competent legal counsel required by the [...]

Wash. Supreme Court: Padilla is retroactive; admonishment imposes on attorney duty to advise about immigration consequences

Continuing the inevitable development of right-to-counsel case law in the states courts, the Washington Supreme Court held last week that the U.S. Supreme Court’s landmark opinion in Padilla v. Kentucky, 559 U.S. 356 (2010), applies no matter when the conviction was entered. In re Tsai, No. 88770-5, slip op. (Wash. May 7, 2005). A divided Washington Supreme Court—five justices in the majority, four in dissent—concluded that Padilla was not a new rule of constitutional law, thus it applies retroactively. This case involved two separate claims that were consolidated at the state supreme court [...]