Padilla v. Kentucky and Immigration: What Does the Future Hold?

Padilla v. Kentucky: Implications for U.S. Immigration

This paper provides a review of the relevant literature concerning the case, Padilla v. Kentucky,[footnoteRef:1] discussing citizenship, and similar predicaments in other countries. It is this paper's thesis that the decision in Padilla has significant implications for defense lawyers who must now become familiar with the complexities of immigration law or retain counsel to assist them in this area. Established in Strickland v. Washington, the test for ineffective assistance of counsel is comprised of two parts: (1) defendants must first show that their counsel was constitutionally deficient and (2) show that the deficiency prejudiced the result of their case.[footnoteRef:2] In addition, cases involving guilty pleas require defendants to demonstrate that in the absence of deficient counsel, they would have insisted on a trial.[footnoteRef:3] Furthermore, defendants also enjoy the Due Process Clause protections that require judges and defendants to engage in a conversation concerning the potential consequences of a guilty plea, known as the "plea colloquy." This step is required before defendants are allowed to enter a valid guilty plea. According to Lang, "The plea colloquy is meant to ensure that the plea is knowing and voluntary. While not required by the Fifth Amendment, many states mandate that judges issue general warnings to defendants regarding the immigration consequences of a guilty plea."[footnoteRef:4] [1: Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).] [2: Danielle M. Lang, Padilla V. Kentucky: The Effect of Plea Colloquy Warnings on Defendants' Ability to Bring Successful Padilla Claims, 121 The Yale Law Journal 4, 944 (January 2012).] [3: Lang, 944.] [4: Lang, 945.]

Following the decision in Padilla, several lower courts have held that such general court warnings preclude defendants from demonstrating prejudice and prevent them from prevailing on an ineffective assistance of counsel claim in those cases where there might otherwise be a violation of the Sixth Amendment protections.[footnoteRef:5] To determine the current state of affairs, this paper provides a review of the relevant literature concerning Padilla v. Kentucky and its implications for the bar. A summary of the research and important findings concerning this case are provided in the conclusion. [5: Lang, 945.]

Literature Review and Synthesis

Even legal permanent residents who have been convicted twice for crimes of "moral turpitude" can be deported from the United States irrespective of their length of residency and irrespective of whether the crimes were felonies or misdemeanors.[footnoteRef:6] Moreover, the U.S. Citizenship and Immigration Service is empowered to deport any alien who is convicted of an aggravated felony at any point in time.[footnoteRef:7] These cases are far more common than many people might believe, and during the period from 2000 to 2009, more than 920,000 people were deported from the U.S. As a result of their criminal status.[footnoteRef:8] [6: Austin Sarat, Law as Punishment/Law as Regulation. Stanford, CA: Stanford Law Books, 85 (2011).] [7: Sarat, 85.] [8: Sarat, 85.]

In fact, the number of foreign nationals who have been deported from the United States has more than doubled in the last decade.[footnoteRef:9] The process, though, is not automatic and the Citizenship and Immigration Service, immigration judges, and the Board of Immigration Appeals have the authority to deport or not, depending on the individual circumstances that are involved. According to Sarat, "Until the Supreme Court's decision in Padilla v. Kentucky (2010), that fact had been key to defining deportation as an 'indirect' rather than 'direct' sanction."[footnoteRef:10] [9: Kara B. Murphy, Representing Noncitizens in Criminal Proceedings: Resolving Unanswered Questions in Padilla V. Kentucky, 101 Journal of Criminal Law and Criminology 4, 1371 (Fall 2011).] [10: Sarat, 85.]

In the Padilla case, the Supreme Court held that the Sixth Amendment requires defense counsel to inform any client who is not a citizen of the potential for deportation as a result of a conviction. Citing significant revisions of federal immigration law, the Court in Padilla pointed out that deportation is currently "virtually inevitable" and "nearly an automatic result for a broad class of noncitizen offenders."[footnoteRef:11] In its March 31, 2010 decision in Padilla, the Supreme Court held that when defense counsel failed to inform noncitizen clients of the potential for deportation as a result of a conviction, this failure represented ineffective counsel which was violative of the Sixth Amendment. According to Ewald, the Padilla decision was "hailed by advocates as 'momentous' and a 'Gideon decision for immigrants.' The Padilla ruling has been greeted by supporters and detractors alike as a landmark in Sixth Amendment jurisprudence."[footnoteRef:12] [11: Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).] [12: Alec C. Eward, Deportation, Effective Counsel, and Collateral Sanctions: Padilla V. Kentucky (2010). 32 Justice System Journal 2, 235 (May 1, 2011).]

In the past, noncitizens who were threatened with deportation could seek relief from various sources, including the courts, the Immigration and Naturalization Service (the predecessor to the Citizenship and Immigration Service) and the attorney general; however, as the result of a series of Congressional statutes, these avenues of relief have been sharply curtailed. Characterizing deportation as a "harsh" consequence and a "drastic measure," the Padilla Court determined that the automatic nature of deportation due to convictions of crimes gives deportation such a "close connection to the criminal process" that defense attorneys must provide their noncitizens clients with advise concerning the potential for deportation as part of their Sixth Amendment duties, especially when plea bargain agreements are involved. In this regard, the Padilla Court added such deportation advice to lawyer's Sixth Amendment duties while describing this sanction as being "uniquely difficult to classify as either a direct or a collateral consequence."[footnoteRef:13] [13: Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).]

Defendants in American court who enter into plea bargains are protected by the Sixth Amendment right to effective assistance of counsel which entitles defendants to the guidance of a competent defense lawyer as well as the Fifth Amendment Due Process requirement that a valid guilty plea must be "knowing," "intelligent," and "voluntary."[footnoteRef:14] According to Lang, "These two rights, both well-established in Supreme Court jurisprudence, work in tandem to ensure that the adversarial process functions fairly, not only in trials, but in plea bargains as well."[footnoteRef:15] [14: Lang, 945.] [15: Lang, 945.]

This issue has become even more important in recent years as the United States continues to seek viable solutions to illegal immigration. At present, there are between 10 million to 12 million illegal immigrants in the country and the Immigration and Customs Enforcement agency currently processes around 400,000 cases related to removal or deportation pursuant to its law enforcement mandate.[footnoteRef:16] Moreover, following the Supreme Court's decision in Padilla, many noncitizens faced with a criminal conviction are in an untenable position due to the vagaries of the decision-making process. For instance, Gilroy advises that, "The legal, adjudicative, and policy environment has become more difficult than any time in memory. Adjudications are unpredictable and hostile, with standards shifting almost day-to-day and adjudicator to adjudicator."[footnoteRef:17] Indeed, some analysts maintain that the decision in Padilla has "started a revolution" in ways that "fundamentally alter the concept of the criminal sentence and eradicating the distinction between direct and collateral consequences. Others contend that Padilla is likely to alter very little because the opinion is narrow, the consequence of non-compliance is small, and the workload of the criminal defense bar, or at least the indigent defense bar, is already unmanageable."[footnoteRef:18] Taken together, these trends mean that the Padilla case was decided at an important juncture in American history where the debates over immigration reform continue to be played out and the need for predictability in judicial decisions has become more important than ever. [16: Marilyn Gilroy, Immigration Law Is Hot Topic at Law Schools, 22 The Hispanic Outlook in Higher Education 7, 43 (January 9, 2012).] [17: Gilroy, 44.] [18: Malia Brink, A Gauntlet Thrown: The Transformative Potential of Padilla V. Kentucky. 39 Fordham Urban Law 1, 39 (November 2011).]

Analysis

The defendant in the Padilla case, Jose Padilla, was a licensed truck driver living and working in California. Although he was born in Honduras, Padilla had lived as a lawful permanent resident of the U.S. For more than 40 years at the time of his criminal charges. When Padilla's tractor-trailer truck was stopped and search in Kentucky, law enforcement authorities discovered large amounts of marijuana. When Padilla was advised by his counsel, he was told that since he had lived in the country for so long, there was no danger of his being deported as a result of his conviction. Based on this advice, Padilla accepted a plea bargain in which he would plead guilty to some charges and receive a total sentence of 10 years, with the last 5 years being served on probation.[footnoteRef:19] [19: Ewald, 236.]

The legal advice provided by Padilla, though, was in error and convictions for drugs are deportable offenses pursuant to federal law in general and mandatory for drug trafficking convictions. In this regard, Murphy reports that, "Criminal law in the United States is a harsh and unpredictable system for noncitizens. In the first paragraph of the opinion, the Court observes that 'Padilla's crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense.' Given the state of the law, the Court stressed that deportation for noncitizens who commit a removable offense is 'practically inevitable,' barring a decision by the Attorney General to exercise his limited discretionary power to cancel removal."[footnoteRef:20] Based on the erroneous legal advice provided by his defense attorney, Padilla petitioned for relief, maintaining that his attorney had not provided effective counsel, and that he would have opted for a trial if the potential for deportation had been known. A circuit court in Kentucky initially denied Padilla's petition; however, an appeals court remanded the case to the trial court for an evidentiary hearing.[footnoteRef:21] [20: Murphy, 1372.] [21: Ewald, 236.]

The Supreme Court of Kentucky reversed the appeals court's decision, holding that because "collateral consequences are outside the scope of the guarantee of the Sixth Amendment right to counsel," Padilla was not entitled to post-conviction relief. Thereafter, Padilla appealed and the U.S. Supreme Court agreed to hear the case.[footnoteRef:22] The Supreme Court agreed with Padilla's assertions concerning the lack of sound advice from his lawyer. In this regard, the Court pointed out that "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation."[footnoteRef:23] In support of their decision, the Court pointed out that "[O]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a risk of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."[footnoteRef:24] [22: Ewald, 236.] [23: Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).] [24: Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).]

The Padilla case attracted a great deal of interest from the defense bar and amicus briefs were provided by the American Bar Association as well as a number of law professors which all called for a reversal of the defendant's conviction. Conversely, the U.S. Solicitor General and more than half (28) of state attorneys general called for the Padilla case to be affirmed. The U.S. Solicitor General and state attorneys general called upon the Supreme Court to affirm the Padilla conviction in order to confirm that deportation is included in the so-called "collateral" consequences that can result from a criminal conviction. Such collateral consequences can include restrictions on access to public housing and benefits, employment, firearms rights, military service, voting rights, jury eligibility, and other rights and privileges that are concomitants of citizenship.[footnoteRef:25] [25: Ewald, 237.]

Because the majority of these restrictions are adjudicated by other authorities and agencies, the majority of courts have held that attorneys are not required to advise their clients of these civil penalties prior to pleading guilty. These issues would become salient in the Padilla case because the standards for effective legal counsel have been applied to "direct" consequences only and lawyers' responsibilities to their clients are related to the penalties involved in the instant case only as imposed by the sentencing court. In this regard, in rejecting Padilla's petition, the Kentucky circuit court pointed out that, "Padilla's counsel does not make a deportation decision and neither does this Court."[footnoteRef:26] [26: Commonwealth of Kentucky v. Padilla, S.W. 3d 482 (Supreme Court of Kentucky, 2008), p. 483.]

There were other issues advanced in the Padilla case that have significant implications for other similarly situated defendants. The amicus briefs submitted by the state attorneys general emphasized the importance of the plea bargaining system which was described as "the backbone of the U.S. criminal justice system." The brief from the Louisiana attorney general noted that the overwhelming majority (approximately 95%) of all state felony convictions are the result of plea bargains.[footnoteRef:27] Since collateral sanctions are not defined as punishments, such plea bargain were considered legitimate even in those cases where defendants were not informed of the potential civil penalties that could be imposed. The Louisiana attorney general's brief also stressed that requiring counsel to inform noncitizen defendants of the immigration consequences of a conviction would conflate the distinction between direct and collateral consequences and would "likely break the back of the plea agreement system."[footnoteRef:28] The outcome of such a blurred distinction, the Louisiana state attorney general maintained, would have an adverse effect on the finality of plea bargaining agreements. [27: Brief for States of Louisiana et al. 2009, 9; Padilla v. Kentucky, p. 1485.] [28: Brief for States of Louisiana et al. 2009, 9; Padilla v. Kentucky, p. 11.]

The decision by the Supreme Court was not unanimous, and Justice Stevens wrote the opinion for the five-justice majority. In sum, the Court held that the Sixth Amendment requires defense lawyers to provide their noncitizen clients with information concerning the potential for deportation as a result of a criminal conviction. The Supreme Court remanded the case to the Kentucky courts to determine if Padilla's plea bargain agreement was prejudiced substantively by his lawyer's failure to advise him of these potential consequences. In Justice Stevens's opinion, there were four main conclusions highlighted as follows:

1. The Court noted that because of statutory changes expanding the list of deportable offenses and restricting the power of judges and the attorney general to lift this sanction, deportation is now "virtually inevitable for a vast number of noncitizens convicted of crimes" and is "nearly an automatic result for a broad class of noncitizen offenders."[footnoteRef:29] Deportation is not only an "integral part" of the penalty for such defendants, but "sometimes the most important part."[footnoteRef:30] . [29: Padilla v. Kentucky, pp. 1478, 1481.] [30: Padilla v. Kentucky, pp. 1480.]

2. The Court concluded that Padilla's lawyer failed the ineffective -counsel standard set up in Strickland v. Washington (1984). Under the first part of Strickland's two-prong test, defense counsel must have been deficient "below an objective standard of reasonableness." Here the Court relied on publications by the American Bar Association and other organizations as indicators of professional practices and responsibilities, observed that the removal consequences of a guilty plea "could easily be determined from reading the removal statute," and concluded Padilla's counsel should have advised him of his certain deportation. Rejecting the U.S. Solicitor General's recommendation that only misadvice be prohibited, the Court imagined the perverse incentives of such an arrangement: the rational defense attorney might well "remain silent on matters of great importance."[footnoteRef:31] [31: Padilla v. Kentucky, p. 1484.]

3. The third essential piece of the Padilla opinion is its conclusion that deportation is "unique."[footnoteRef:32] Because of its severity - it is a "drastic measure" with "harsh consequences" - and its nearly automatic character, deportation has a "close connection to the criminal process" that makes it "uniquely difficult to classify as either a direct or a collateral consequence."[footnoteRef:33] Thus, the majority said its holding did not disrupt the traditional division between direct and indirect penalties - yet intriguingly, the majority did so while denying that the Court itself had ever actually "applied a distinction between direct and collateral consequences" in Sixth Amendment cases.[footnoteRef:34]. [32: Padilla v. Kentucky, p. 1481.] [33: Padilla v. Kentucky, p. 1482.] [34: Padilla v. Kentucky, p. 1481.]

4. The Court rejected the concern that ruling for Padilla would unsettle the law and practice of plea bargaining. After all, counsel in many jurisdictions have been required to provide such warnings for some time, under statutory and judge-made law. It will still be legally difficult and tactically risky to attempt to withdraw a plea, given that the best outcome such a challenge can lead to (from the convicted person's perspective) is the chance to face the charges anew - and possibly draw a tougher sentence. Indeed, the majority reasoned that prosecutors may find their negotiating position strengthened where defendants understand they are negotiating under the "threat of deportation."[footnoteRef:35] By suggesting that prosecutors use deportation - heretofore a purely 'collateral' consequence - as leverage in plea negotiations, the majority sought to answer the practical concerns of the state attorneys general, while underscoring the Court's conclusion that deportation is not only a de facto punishment but a particularly important one.[footnoteRef:36] [35: Padilla v. Kentucky, p. 1486.] [36: Ewald, 237.]

In addition, in a concurring opinion joined by Chief Justice Roberts, Justice Alito rejected the majority's "dramatic departure" from precedent and cautioned that "a major upheaval in Sixth Amendment law" would result.[footnoteRef:37] The opinion's disagreement with the majority opinion, though, was less pronounced than these admonitions might otherwise indicate. For example, Justice Alito agreed that Padilla's counsel's erroneous guidance had been constitutionally defective, and noted that attorneys must provide a general warning that "a criminal conviction may have immigration consequences."[footnoteRef:38] According to Love and Chin, "This means there were actually seven votes for some form of deportation-notice requirement."[footnoteRef:39] [37: Padilla, pp. 1488, 1491, J. Alito concurring.] [38: Padilla v. Kentucky, p. 1487.] [39 M.C. Love and G.J. Chin (2010). Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction 34 The Champion 18.]

Likewise, Justice Scalia argued in a dissent joined by Justice Thomas that this problem should be resolved through federal and state legislation instead of a judicial decision, characterizing the decision "a sledge when a tack hammer is needed."[footnoteRef:40] Nevertheless, the dissenting justices still concurred that the law should provide Padilla with some level of relief. In this regard, Justice Scalia posited that the Due Process Clause might provide a superior basis for Padilla's claims if he had argued that his attorney's misadvice meant his plea was not "knowing and voluntary."[footnoteRef:41] [40: Padilla, p. 1494, J- Scalia, dissenting.] [41: Padilla v. Kentucky, p. 1496.]

The fallout from the Padilla decision has been significant. For instance, according to Lang, "As with many landmark decisions, the ruling left several unanswered questions for the lower courts to decide. The answers to those questions have the capability to either considerably expand or limit the practical effects of the decision on litigants."[footnoteRef:42] The case has been cited in a growing number of cases involved plea bargaining agreements and collateral sanctions in state and federal courts.[footnoteRef:43] In fact, this case has altered the manner in which the legal profession now handles plea agreements. In this regard, Atkins advises that, "After Padilla, some federal prosecutors have started adding language to plea agreements such as 'I understand that if I plead guilty there will be immigration consequences" or 'I will be required to register as a sex offender.'"[footnoteRef:44] The implications of the Padilla decision, though, are primarily directed at defense attorneys who must currently become knowledgeable concerning immigration law or enlist the assistance of an attorney who specializes in immigration law. [42: Lang, 944.] [43: Ewald, 237.] [44: K. Atkins (2010). Defense Counsel's Duty to Warn About . . . Everything? Lawyers Weekly USA, November 8.]

Not surprisingly, some lawyers have mixed views about the Padilla decision. One legal publication bluntly stated that, "Padilla means more work" and added that there were "mixed feelings" concerning the Padilla decision.[footnoteRef:45] There have also been practice advisories issued by numerous national and local advocacy groups, including the Immigrant Defense Project, the National Association of Criminal Defense Lawyers and Defending Immigrants Partnership, and the Committee for Public Counsel Services. According to Ewald, "In time, Padilla may further shift the provision of public defense toward larger organizations, where specialized immigration advice can be offered in-house."[footnoteRef:46] [45: M. Lore (2010). Attorneys Fear 'Padilla' Means More Work, Minnesota Lawyer, April 19.] [46: Ewald, 237.]