Monday, March 02, 2009

Cert Grant: Whether Lawyer's Nonadvice or Misadvice About Immigration Consequences of Guilty Plea Constitutes Ineffective Assistance of Counsel

As a commenter to an earlier post points out, the Supreme Court granted cert last week in Padilla v. Kentucky, No. 08-651, a case concerning a defense lawyer's obligation to advise an alien client about the immigration consequences of pleading guilty to a criminal offense. The formal questions presented are available here, but an amicus brief in support of the petition frames the questions in a way that is much easier to understand:
  1. Does the Sixth Amendment's guarantee of effective assistance of counsel require a criminal defense attorney to advise a client who is not a citizen that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation?
  2. If a criminal defense attorney misadvises his noncitizen client that a guilty plea will not lead to deportation, and that misadvice induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?
Both questions have produced lopsided splits among the federal and state appeals courts. According to the amicus brief, a large majority answer question one "no," and question two "yes." (By the way, all of the cert-stage pleadings are available at ScotusWiki.) Where does our fair circuit fall, you ask? It just so happens that the Fives addressed these questions, among others, in a decision handed down last November: Santos-Sanchez v. United States, No. 07-40145 (5th Cir. Nov. 6, 2008) (Reavley, Clement, Prado).

Santos-Sanchez presented a procedural scenario you don't see every day: an appeal from the denial of a petition for a writ of coram nobis. Santos, a legal resident alien, pleaded guilty to aiding and abetting the illegal entry of an alien, in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 2(a) (known colloquially as misdemeanor alien smuggling). As a result, DHS sought to remove Santos from the United States. While the removal proceedings were still ongoing, Santos filed his petition for a writ of error coram nobis, seeking vacation of his conviction. The petition was ultimately denied, and Santos appealed.

Santos presented three arguments, all of which the court of appeals rejected. First, "he argue[d] that his defense counsel rendered ineffective assistance by affirmatively misrepresenting the immigration consequences of his guilty plea." Specifically, Santos claimed that he was misled into believing that removal was only a possibility---rather than a certainty---because 1) one of his attorneys advised him that deportation is a possible consequence of a guilty plea to a criminal charge, and for that reason that he may want to consult an immigration lawyer, and 2) his other attorney gave him an immigration lawyer's business card "and suggested that Santos-Sanchez call the lawyer if he had any problems with immigration." The court held that the attorneys' advice was not objectively unreasonable under the Strickland standard, given the circumstances: neither attorney claimed to be an expert in immigration law, they did not answer any questions concerning deportation, and "[w]hile [the] statement that deportation was 'possible' might indicate that deportation was not a certainty, it is not so inherently misleading in this context that it constitutes an affirmative misrepresentation of the law."

Second, Santos argued, in the alternative, that his attorneys were ineffective "due to [their] failure to warn him of the immigration consequences of a guilty plea." That ran smack into the Fifth Circuit's prior decision in United States v. Banda, which held that "counsel’s failure to inform a defendant of the collateral consequences of a guilty plea"---and deportation is a collateral consequence---"is never deficient performance under Strickland." Santos tried to get around Banda by arguing that certain deportation---as opposed to the mere possibility of deportation---is a direct consequence of a guilty plea, not a collateral consequence, particularly after IIRIRA. The court disagreed, observing that "[t]he likelihood that a defendant would be deported was irrelevant to" Banda's holding. As for IIRIRA, the court
agree[d] with the First and Tenth Circuits that the changes wrought by IIRIRA have not so altered the nature of deportation as to wholly undermine our holding in Banda. We, like our sister circuits, have drawn a bright line between the direct and collateral consequences of a guilty plea and require that counsel advise a defendant of only the former. And also like our sister circuits, we have limited the direct consequences of a guilty plea to “the immediate and automatic consequences of that plea such as the maximum sentence length or fine.” Under Banda, regardless of certainty, deportation is a collateral consequence of a guilty plea. Consequently, Santos-Sanchez’s counsel was not required to inform him of the immigration consequences of his guilty plea for counsel’s assistance to be effective.

(internal cite removed).

Santos's third argument---as well as the court's rejection of it---mirrored the second one:
  • Santos argued that his guilty plea was ineffective because the magistrate judge failed to advise him of the immigration consequences of his guilty plea.
  • The Fifth Circuit has "previously held that neither due process nor Federal Rule of Criminal Procedure 11 require that a court advise a defendant of the collateral consequences of a guilty plea[,]" and deportation is one such collateral consequence.
  • Santos said things are different after IIRIRA.
  • The court agreed with other circuits that have held that the post-IIRIRA certainty of deportation doesn't make it a direct consequence of a conviction, meaning it's still a collateral consequence, meaning a court need not admonish a defendant of the immigration consequences of a guilty plea.
(One last thing from Santos-Sanchez for all of you procedure wonks out there: the case holds that magistrate judges lack statutory jurisdiction to hear a petition for writ of coram nobis. Read the opinion if you want to know why.)

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Anonymous Anonymous said...

Appreciate your coverage of Padilla v. Kentucky. Just one perhaps unimportant correction: you write that as a final ground for relief, "Santos argued that his guilty plea was ineffective because the magistrate judge failed to advise him of the immigration consequences of his guilty plea." The argument was that the plea was involuntary. Although your explanation is fair in context, considering that ineffective assistance was a central legal issue, it may help to clarify it. This issue was not granted cert by the high court. Again, thanks for your very helpful information.


3/11/2009 04:37:00 PM  
Anonymous Jorge G. Aristotelidis said...

Just wondering if you will be writing on Padilla v. Kentucky. I'm really interested in your input based on your reading of the opinion, and the supreme court's vacating of Santos-Sanchez' conviction on April 5, 2010. Thanks. Jorge G. Aristotelidis

4/14/2010 05:55:00 PM  

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