right to counsel

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 [...]

The Power of 1000: Updates from the Nation’s First Immigration Public Defender

By Andrea Saenz The nation’s first public defender system for detained immigrants facing deportation, the New York Immigrant Family Unity Project (NYIFUP), recently marked an important milestone unimaginable just a few years ago: representing over 1000 clients since opening its doors as a pilot project in 2013. That’s 1000 New Yorkers and their families who would have faced permanent separation for no reason except their inability to afford counsel. Instead, they entered court with an outstanding lawyer by their side, courtesy of the NYIFUP service providers: the Bronx Defenders, Brooklyn [...]

Mellouli in the context of the modern deportation system

By Jason Cade On Wednesday, Jennifer Koh noted that Mellouli v. Lynch, 575 U.S. --- (2015), marks the fourth time in ten years that the federal government has zealously litigated the application of harsh removal provisions to lawfully present noncitizens with minor drug convictions all the way to the Supreme Court, only to lose. For my contribution to this online symposium, I’d like to put the Mellouli decision into an even broader context. My thoughts here draw on ideas that I am developing in a forthcoming article, entitled Enforcing Immigration Equity, to be published later this year in [...]

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 [...]

CT Supreme Court: Padilla isn’t retroactive

In a much anticipated case, the Connecticut Supreme Court held this week that Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply retroactively to state convictions. Thiersaint v. Commissioner of Correction, No. SC 19134, slip op. (Conn. April 14, 2015). In Padilla, the U.S. Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires criminal defense attorneys to advise noncitizen clients about the immigration consequences of conviction. This week’s Connecticut decision makes it less likely that migrants who were denied such advice prior to March 31, [...]

Virginia Supreme Court on Padilla prejudice standard

Migrants are prejudiced, the Virginia Supreme Court held, when their criminal defense attorneys fail to provide advice that would objectively lead them to turn down a plea offer whether or not the evidence of guilt is strong. Zemene v. Clarke, No. 140719, slip op. (Va. 2015). Students from the Immigrant Justice Clinic at American University Washington College of Law successfully argued this case under the supervision of their outstanding professor Jayesh Rathod. This case concerned a lawful permanent resident who was convicted of petit larceny stemming from an incident in which he was [...]

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 § [...]