57 THE ROLE OF THE U.S.

CONSTITUTION AND IMMIGRANTS' RIGHTS: REMOVAL OF REMEDIES AND THE ADMISSION OF A SIXTH AMENDNENT RIGHT TO COUNSEL Steven L. Walden I. INTRODUCTION A. The Issue: Competent Counsel for the Noncitizen Defendant For almost 100 years, Congress has expanded the array of deportable offenses, while simultaneously removing almost all forms of relief for noncitizens.1 Today, a noncitizen is automatically deportable for an aggravated felony conviction, as defined by Congress.2 However, the actual offense need not be aggravated, a felony, or a conviction for immigration purposes. For example, a Texas misdemeanor theft charge with twelve months deferred adjudication probation is an aggravated felony conviction for immigration purposes.3 It is irrelevant that the actual offense was a misdemeanor, non-aggravated, and not a conviction. Furthermore, until Padilla v. Kentucky,4 criminal defense attorneys had no legal duty to provide effective assistance of competent counsel to their noncitizen clients regarding the adverse immigration consequences associated with a criminal plea.5 In Padilla, the Court recognized that it was responsible under the U.S. Constitution to ensure that noncitizens had a right to effective

Editor-in-Chief, Thurgood Marshall Law Review (2011-2012), Juris Doctorate Candidate (2012), Thurgood Marshall School of Law; Masters of Science (2008), Tarleton State University. I would like to express gratitude to my wife, Debbie Walden, for her unwavering support and encouragement, and also to Professor Faith Joseph Jackson, Dean Fernando Colon and Judge Lupe Salinas for their advice and guidance throughout my law school career. 1 Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010). 2 Immigration and Nationality Act of 1952, 237(a)(2)(A)(iii) (codified at 8 U.S.C. 1227(a)(2)(A)(iii) (2008)). 3 Immigration and Nationality Act of 1952, 101 (a)(43)(G), 101(a)(48) (codified at 8 U.S.C. 1101(a)(43)(G), 1101(a)(48) (2011)). 4 Padilla, 130 S. Ct. 1473. 5 Id. at 1486.

58 assistance of competent counsel, which included affirmative advice regarding the risks of removal associated with a criminal plea.6

B. Statement of Significance: If Congress is Clear the Duty is Equally Clear The Court's decision in Padilla will have a significant impact on a criminal defense attorney's counsel to noncitizen clients. The Court recognized that deportation is a "particularly severe penalty" that is so closely related to the prosecutorial process that removal advice is within the boundary of the Sixth Amendment right to effective assistance of competent counsel.7 The Court determined that professional organizations, such as the American Bar Association, have established standards for defining effective assistance of competent counsel.8 Within the context of immigration, the Court found that professional norms and standards require a criminal defense attorney to provide advice to a noncitizen client regarding the immigration consequences associated with a criminal plea.9 The Padilla Court held that the Sixth Amendment10 requires affirmative effective assistance of competent counsel regarding immigration consequences resulting from a criminal disposition when the law is "succinct and straightforward."11 The Court clarified that both misadvise and silence about immigration consequences would establish constitutionally deficient assistance of counsel.12 As a result, the Court held that, even if the immigration law is not clear and the consequences associated with a criminal plea are uncertain, a criminal defense attorney still has a duty to advise a noncitizen client that adverse immigration consequences are a possibility.13 Significantly, the Court further recommended that the defense and prosecution make an informed consideration of the adverse
6 7

Id. Id. at 148182. 8 Id. at 1482. 9 Id. 10 U.S. CONST. amend. VI (right of a person accused of a crime to have assistance of counsel). 11 Padilla, 130 S. Ct. at 1483. 12 Id. at 1484. 13 Id.

59 immigration consequences during the plea bargaining process, in order to reduce the probability of removal and to promote the interests of justice.14 C. Scope of Statement: From Congress's Plenary Powers to the Alien Deserves Some Advice Part one of this article includes an introduction to the current legal situation imposed upon noncitizens, defined by an everexpanding array of deportable offenses, with few forms of effective relief from removal. It also includes the evolution of the noncitizens right to effective assistance of counsel. Prior to Padilla, a noncitizen did not have a Sixth Amendment15 right to effective assistance of counsel associated with adverse immigration consequences resulting from a criminal plea. However, after Padilla, a criminal defense attorney has a duty to warn a noncitizen client about the risks of deportation that may result from alternative dispositions in a criminal case.16 Part two presents a historical overview of the development of immigration law in America and an accused person's right to assistance of counsel in a criminal proceeding. As the overview indicates, it was not until 1917 that Congress began deporting noncitizens for conduct committed after entering the United States.17 Since that time, Congress has continually expanded the definition of deportable offenses while eliminating almost all forms of relief, thereby leaving a noncitizen to face inevitable removal.18 This reveals the noncitizen's critical dependence upon competent legal advice in a criminal plea.19 However, the overview also discusses that a criminal defendant, whether citizen or noncitizen, was not entitled to effective assistance of competent counsel in all criminal cases, as a Sixth Amendment20 right, until 1963.21 Nevertheless, for the noncitizen, effective assistance to competent counsel did not include advice regarding adverse immigration consequences
14 15

Id. at 1486. U.S. CONST. amend. VI. 16 Padilla, 130 S. Ct. 1473. 17 Id. at 1479. 18 Id. at 1480. 19 Id. 20 U.S. CONST. amend. VI. 21 Gideon v. Wainwright, 372 U.S. 335 (1963).

60 associated with a criminal plea until 2010.22 Part two of this article concludes with an overview of the key facts relevant to the Court's analysis in Padilla.23 Part three discusses the Court's reasoning in Padilla.24 It explains why the Court essentially created a constitutional right for the noncitizen to receive effective assistance of competent counsel regarding adverse immigration consequences resulting from a criminal plea.25 Part three also presents the standard the Court employs to determine if a criminal defense attorney's advice is constitutionally deficient.26 Part four presents the writer's critical analysis and proposal. The writer's analysis explores the Padilla Court's reasoning, facts, historical perspectives, and relevant legal precedent. The writer's opinion discusses the importance and consequences of the Court's holding. In addition, part four analyzes the facts and reasoning offered in Padilla by the concurring justices, with objections, as well as those of the dissent. The writer asserts that granting a constitutional right for the noncitizen to receive effective assistance of competent counsel regarding adverse immigration consequences resulting from a criminal plea is a just result in light of Congress's expansion of deportable offenses with no relief in many cases. Moreover, part four presents the writer's proposals and rationale for recommending reinstatement of the Judicial Recommendation Against Deportation ("JRAD") for Lawful Permanent Residents ("LPRs"), or the granting of substantive due process rights to LPRs. Part five concludes with the writer's recommendations, supported by analysis. I. BACKGROUND A. Colonial and State Governance over Immigration Since the American colonies were founded, local authorities established and enforced immigration law.27 Such laws typically
22 23

Padilla, 130 S. Ct. at 1486. Id. 24 Id. 25 Id. at 1482. 26 Strickland v. Washington, 466 U.S. 668, 689 (1984). 27 Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power Over Immigration, 86 N.C. L. REV. 1557, 1566 (2008).

61 sought to control the movement of citizens and non-citizens based on indigence, criminal status, slave status, health, race, national origin, and religion.28 Therefore, the colonies, and later the states, regulated the movements of citizens and noncitizens through their specific jurisdictions, even though the United States borders were physically open.29 It was not until the latter part of the 19th Century that Congress passed its first statute controlling immigration into the United States.30 B. Federal Supremacy over Immigration, an Issue of Sovereignty In 1798, Congress passed a federal statute granting deportation authority to the President.31 The Alien Enemy Acts of 1798 granted the President authority to remove aliens, friendly and unfriendly, if their country of origin was at war with the United States.32 However, the Alien Enemy Acts of 1798 were short-lived and expired two years later.33 In 1875, Congress passed its first statute that excluded immigrants from the United States, specifically prostitutes and noncitizen-felons, unless the felony was for a political offense.34 In 1889, the Supreme Court in Chae Chan Ping v. United States35 affirmed that Congress has a sovereign right "to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion."36 In 1891, Congress included misdemeanors involving moral turpitude as excludable offenses.37 Moreover, in 1893, the Supreme Court in Fong Yue Ting v. United States38 re-affirmed Ping,39 stating that policies of exclusion and deportability are determined by either a treaty made by the President
28 29

Id. at 1567. Gerald L. Neuman, The Lost Century of American Immigration Law, 93 COLUM. L. REV. 1833, 1834 (1993). 30 Id. at 1844. 31 See Stumpf, supra note 27, at 1566. 32 Id. 33 Id. 34 See Neuman, supra note 29, at 1834 (citing Act of Mar. 3, 1875, ch. 141, 5, 18 Stat. 477, 477). 35 Chae Chan Ping v. United States, 130 U.S. 581, 607 (1889). 36 Id. 37 Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (citing Act of Mar. 3, 1891, ch. 550, 26 Stat. 1084 (codified at 8 U.S.C.A. 1321 (2006)). 38 Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893). 39 Ping, 130 U.S. 581.

62 and Senate or by statutes enacted by Congress.40 In addition, the Court in Ting ruled that deportation was not a punishment for a crime and that a noncitizen's right to judicial relief from deportation (e.g., by the testimony of at least one credible white witness, inter alia) had to be expressly granted to the noncitizen by a federal statute.41 Otherwise, the judicial department was not available to the noncitizen for deportation purposes.42 In 1896, the Supreme Court in Wong Wing v. United States43 ruled that where Congress had promulgated an immigration law with criminal penalties (e.g., any Chinese noncitizen found to be in the United States unlawfully would be sentenced to one-year imprisonment at hard labor and thereafter deported), the noncitizen must be afforded constitutional due process rights, like every other criminal defendant.44 The Supreme Court in Wing re-affirmed that, "no limits can be put by the courts upon the power of Congress to protect . . . the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such."45 In 1907, Congress also added admissions to crimes of moral turpitude as an excludable criterion.46 In 1917, Congress passed the first federal statute that made a noncitizen deportable if he committed a crime of moral turpitude in the United States within five years after his entry, if the sentence was for at least one-year imprisonment.47 In addition, the 1917 Act made a noncitizen deportable if at any time after entry he committed at least two crimes involving moral turpitude.48 Congress defined a crime involving moral turpitude to include inter alia a misdemeanor theft offense with a sentence of at least one year, including cases of deferred adjudication probation.49

40 41

Ting, 149 U.S. at 705. Id. at 714. 42 Id. 43 Wong Wing v. United States, 163 U.S. 228, 237 (1896). 44 Id. 45 Id. 46 Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) (citing Immigration Act of Feb. 20, 1907, ch. 1134, 3, 34 Stat. 898 (codified in 8 U.S.C. 1227 (2008))). 47 Id. at 1479 (citing Immigration Act of Feb. 5, 1917, ch. 29, 3, 39 Stat. 88990 (codified in 8 U.S.C. 1227 (2008))). 48 Id. 49 Immigration and Nationality Act of 1952, 101(a)(48) (codified at 8 U.S.C. 1101(a)(48)(A) (2011)); Immigration and Nationality Act of 1952, 237(a)(2)(A)(i) (codified at 8 U.S.C. 1227(a)(2)(A)(i) (2008)).

63

C. The Admission and Removal of Judicial and Other Remedies A significant procedural provision in the Act of 191750 was the admission into the immigration law of a JRAD.51 If the sentencing judge in a criminal prosecution issued a JRAD, it was binding authority on Executive agencies, thus preventing the deportation of a noncitizen convicted of a criminal offense.52 Hence, from 1917 until 1952 there were no offenses for which a noncitizen was automatically deportable.53 However, in 1952, Congress passed the Immigration and Nationality Act ("INA"), which removed the JRAD provision from the immigration law for narcotics offenses.54 Also in 1952, the Court in Harisiades v. Shaughnessy,55 re-affirmed that immigration proceedings, such as deportation, are a civil procedure, not criminal, and are not subject to federal constitutional ex post facto prohibitions.56 In Galvan v. Press, the Court reaffirmed that deportation may be "drastic" and burdensome, but it is not punishment.57 Consequently, the Court has repeatedly held that federal constitutional ex post facto prohibitions do not apply to immigration law.58 However, the Court did recognize in Kwong Hai Chew v. Colding59 that a LPR was entitled to procedural due process rights, including notice and an administrative hearing when facing deportation.60 In 1990, Congress amended the INA and completely removed the JRAD provision from immigration law.61 In 1996, Congress also removed the Attorney General's discretionary relief from deportation
50

Padilla, 130 S. Ct. at 1479 (citing Immigration and Nationality Act of 1917, ch. 29, 3, 39 Stat. 88990 (codified at 8 U.S.C. 1227 (2008))). 51 Id. 52 Id. 53 Id. at 1480. 54 Id. 55 Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952). 56 Id. 57 Galvan v. Press, 347 U.S. 522, 530 (1954). 58 Bugajewitz v. Adams, 228 U.S. 585, 591 (1913); Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952); Marcello v. Bonds, 349 U.S. 302, 314 (1955); Lehmann v. Carson, 353 U.S. 685, 690 (1957). 59 Kwong Hai Chew v. Colding, 344 U.S. 590 (1952). 60 Id. 61 Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (citing Immigration and Nationality Act of 1952, 8 U.S.C. 1251 (repealed 1990)).

64 authority.62 In response, in 2001, the Court ruled in INS v. St. Cyr63 that Congress could not retroactively deny a noncitizen the Attorney General's discretionary relief from deportation when the noncitizen accepted a criminal plea bargain prior to 1996 in reliance upon such relief.64 Currently, in the absence of judicial and other remedies to address automatic deportation for removable offenses pled after 1996, the noncitizen's need has never been greater for effective assistance of counsel before entering a plea to a criminal conviction.65 D. The Evolving Standard for the Right to Counsel It appears that almost all of the original thirteen colonies in America rejected the English common law practice of allowing defendants charged with a misdemeanor the opportunity to secure counsel, but denying that right to defendants charged with a felony.66 In most cases, the accuseds right to counsel was limited by his ability to hire an attorney, except in some of the most serious cases, often involving capital punishment where counsel was sometimes provided by the state.67 In 1791, the Sixth Amendment to the United States Constitution was ratified by the states and provided that "in all [Federal] criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense."68 However, it was not until the 1930s that the United States Supreme Court began to recognize the Sixth Amendment provision as an absolute right to counsel in some criminal offenses, regardless of the accuseds circumstances or his ability to hire an attorney.69 For example, the Court ruled in Powell v. Alabama that: [I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for
62

Id. (citing Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C.A. 1229b (2008)). 63 INS v. St. Cyr, 533 U.S. 289 (2001). 64 Id. 65 Padilla, 130 S. Ct. at 1480. 66 Powell v. Alabama, 287 U.S. 45 (1932). 67 Id. at 64. 68 U.S. CONST. amend. VI. 69 Powell, 287 U.S. at 65.

65 him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.70 Nevertheless, it was not until 1963 in Gideon v. Wainwright71 that the Court finally recognized a constitutional right to assistance of counsel in all state and federal criminal prosecutions.72 The Gideon court held that (1) the Sixth Amendment guarantees the accused the right to the assistance of counsel in all criminal prosecutions, (2) the Court had construed the Sixth Amendment to require federal courts to provide counsel for defendants unable to employ counsel unless the right was competently and intelligently waived, (3) the Court looked to the fundamental nature of the Bill of Rights guarantees to decide whether the Fourteenth Amendment made them obligatory on the States, and (4) the Sixth Amendment's guarantee of counsel is one of the fundamental and essential rights made obligatory upon the States by the Fourteenth Amendment.73 In 1970, the Court in McMann v. Richardson74 held that a criminal defendant was entitled, not only to assistance of counsel, but also to the effective assistance of competent counsel.75 In addition, the Court held that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not a reasonably competent attorney and the advice was [not] within the range of competence demanded of attorneys in criminal cases.76 In 1984, the Court in Strickland created a two-prong test to determine if a defendant had been deprived of the right to effective assistance of competent counsel.77 The first prong is an inquiry to determine whether the attorney's performance was below an objective standard of reasonableness under prevailing professional norms.78 If so, the second prong determines whether, but-for the attorney's "unprofessional errors, the result of the proceeding would have been
70 71

Id. Gideon v. Wainwright, 372 U.S. 335 (1963). 72 Id. 73 Id. 74 McMann v. Richardson, 397 U.S. 759, 771 (1970). 75 Id. 76 Id. at 77071. 77 Strickland v. Washington, 466 U.S. 668, 688 (1984). 78 Id.

66 different."79 The Strickland standard for effective assistance of competent counsel and its application to a noncitizen's criminal plea will be expanded upon in the analysis section of part three of this writing. One year later, in Hill v. Lockhart,80 the Court had an opportunity to apply the Strickland test to a case where the defendant claimed his counsel was ineffective for providing misinformation regarding his parole eligibility.81 The Court found that the defendant failed to demonstrate that but-for his attorney's misinformation, he would have rejected the guilty plea and insisted on a trial by jury, thereby failing to establish the second-prong of Strickland.82 However, the Court did not address the first prong regarding the attorney's misinformation or that it concerned a collateral consequence (i.e., parole eligibility).83 E. Deportation: Not Strictly Criminal, Is It Unique? Since Wing, noncitizens have been entitled to the same constitutional protections in criminal proceedings as citizens.84 Historically, the Court has ruled that deportation was only a civil process; therefore, substantive constitutional protections were not applicable.85 However, for the first time in Padilla, the Court recognized that deportation is unique in its nature, even though not specifically a criminal punishment.86 The Court acknowledged that deportation is a "particularly severe penalty" that many noncitizens would consider more important than a "potential jail sentence."87 Since Congress has continued to expand the array of deportable offenses, while simultaneously removing most forms of relief, the Court in Padilla found it exceedingly difficult to separate the penalty of deportation from a criminal sentence.88 With this legal backdrop, the United States Supreme Court accepted the Padilla case.

79 80

Id. Hill v. Lockhart, 474 U.S. 52 (1985). 81 Id. at 58. 82 Id. 83 Id. 84 Wong Wing v. United States, 163 U.S. 228, 237 (1896). 85 Fong Yue Ting v. United States, 149 U.S. 698, 729, 1029 (1893). 86 Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010). 87 Id. at 1481, 1483. 88 Id. at 1481.

67 F. Padilla: Just the Facts Jose Padilla, a native of Honduras, had been a lawful permanent resident of the United States for more than forty years even though he had not obtained American citizenship.89 Padilla possessed a valid Nevada drivers license, a valid social security number, and served with honor as a member of the U.S. Armed Forces during the Vietnam War.90 Padilla was indicted by the Hardin County Grand Jury in the Commonwealth of Kentucky for trafficking in more than five pounds of marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor-trailer without a weight and distance tax number.91 Padilla, represented by counsel, moved to enter a guilty plea to the three drug-related charges in exchange for dismissal of the remaining charge, constituting a total sentence of ten years on all charges.92 The plea agreement provided specifically that Padilla would serve five years of incarceration and the remaining five years on probation.93 However, after sentencing, Padilla was notified by U.S. Immigration and Customs Enforcement ("ICE") that deportation proceedings had commenced because of his guilty plea to drugdistribution charges.94 In post-conviction proceedings, he claimed that his counsel not only failed to advise him of this clear consequence before he entered the plea, but also told him specifically not to worry about deportation since he had lived in this country so long.95 Padilla relied on his counsel's erroneous advice when he pled guilty to the drug charges that made his deportation virtually mandatory.96 He alleged that he would have insisted on going to trial if he had not received incorrect advice from his attorney.97 Padilla was convicted on drug-related charges on October 4, 2002.98 He filed a motion for post-conviction relief, alleging that his
89

Commonwealth v. Padilla, 253 S.W.3d 482, 484 (Ky. 2008), cert. granted, 129 S. Ct. 1317 (2009). 90 Id. at 483. 91 Id. 92 Id. 93 Id. 94 Id. 95 Id. 96 Immigration and Nationality Act of 1952, 237(a)(2)(B)(i) (codified at 8 U.S.C. 1227(a)(2)(B)(i) (2008)). 97 Padilla, 253 S.W.3d at 483. 98 Id.

68 attorney was ineffective in advising him about the potential for deportation as a consequence of his guilty plea.99 The Hardin Circuit Court denied his motion on the basis that a valid guilty plea does not require that the defendant be informed of every possible consequence of a plea.100 Padilla appealed, and the Court of Appeals reversed the Hardin Circuit Court and remanded.101 The Commonwealth of Kentucky then appealed.102 The Kentucky Supreme Court denied Padillas post-conviction relief on the ground that the Sixth Amendment's effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a collateral consequence of a conviction.103 Padilla petitioned for a writ of certiorari, which the United States Supreme Court granted.104 In a 522 decision, the Court reversed and remanded the case.105 In Padilla, the Court examined the Sixth Amendment's requirement for effective assistance of competent counsel owed to noncitizens regarding the immigration consequences resulting from a criminal plea, and by what standard to establish constitutional deficiency.106 II. THE COURTS ANALYSIS A. The Supreme Court's Reasoning: With Remedies Removed, Constitutional Rights Imported Upon granting certiorari to petitioner Jose Padilla, the Supreme Court addressed the following two issues: (1) whether Padilla's counselor engaged in unconstitutional conduct by failing to inform Padilla that a guilty plea to a criminal charge would result in automatic removal; and (2) whether the Strickland effective assistance of counsel test requires affirmative advice to noncitizens that may face removal as a result of a criminal plea.107 The Court held that Padilla's counselor did engage in unconstitutional conduct
99

Id. Id. 101 Id. 102 Id. 103 Id. at 485. 104 Padilla v. Kentucky, 129 S. Ct. 1317, 173 L.Ed.2d 582 (2009), revd, 130 S. Ct. 1473 (2010). 105 Padilla v. Kentucky, 130 S. Ct. 1473, 1473 (2010). 106 Id. at 1484. 107 Id. at 1487.
100

69 by failing to inform Padilla that a guilty plea to a criminal charge would result in automatic removal, and that Padilla's claim was applicable to the Strickland effective assistance of counsel test requiring affirmative advice to noncitizens that may face removal because of a criminal plea.108 The Court reasoned in Padilla that for the past ninety years, immigration laws have continued to expand the class of deportable crimes while removing judicial and other remedies once available to provide relief from the effects of deportation.109 The Court pointed out in McMann that it was responsible under the constitution for ensuring that a criminal defendant, citizen or non-citizen, was entitled to the effective assistance of competent counsel.110 The Court in Padilla acknowledged that deportation is not a criminal sanction and that deportation is actually a civil proceeding.111 However, the Court reasoned that because Congress, for almost one hundred years, has so ensnared deportation with criminal sentences, deportation counsel should not be denied entry into the Sixth Amendment right to counsel.112 The Court rejected the Supreme Court of Kentucky's finding that Padilla's claim to ineffective assistance of counsel was groundless since deportation was a collateral matter not within the scope of representation required by the Sixth Amendment.113 The Court in Strickland noted that it had never made a distinction between direct and collateral matters in determining if the Sixth Amendment right to effective assistance of counsel was applicable.114 Therefore, Justices Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor held that the Sixth Amendment guarantees to noncitizens the right to immigration advice involving the risk of deportation resulting from a criminal plea.115 The Court ruled in Padilla that criminal defense attorneys now have a constitutional duty to give correct advice as to a noncitizen client's risk of deportation when the immigration law at issue is "succinct and straightforward."116 However, when the
108 109

Id. Id. at 1478. 110 McMann v. Richardson, 397 U.S. 759, 759 (1970). 111 Padilla, 130 S. Ct. at 1481. 112 Id. 113 Id. 114 Strickland v. Washington, 466 U.S. 668, 688 (1984). 115 Padilla, 130 S. Ct. at 1486. 116 Id. at 1483.

70 immigration law at issue is not "succinct and straightforward," the criminal defense attorney has a constitutional duty to "advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences."117 Since Padilla challenged his guilty plea based on ineffective assistance of counsel, the Court applied the Strickland test to determine whether these constitutional duties had been breached.118 The Court established a two-prong test in Strickland to determine whether a defendant has been deprived of the right to effective assistance of counsel.119 The first prong is to determine if the attorney's performance was below an objective standard of reasonableness under prevailing professional norms.120 If so, the second prong is to determine if but-for the attorney's "unprofessional errors, the result of the proceeding would have been different."121 To determine reasonable professional norms, the Court reviewed the standards of the American Bar Association and numerous other legal authorities.122 The Court recognized that all sources agreed that a noncitizen criminal defendant should receive competent advice regarding the risks of removal.123 In doing so, the Court also rejected the Solicitor General's argument that Padilla's claim to ineffective assistance of counsel should be limited to inaccurate advice offered by counsel.124 As a result, Justices Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor held that failure to provide affirmative advice about a client's risk of deportation clearly falls below the prevailing professional norms, and thus satisfies the first prong of the Strickland test.125 The Court did not address the second prong of Strickland.126

117

Id. (discussing that the Court did not define or provide a test to define when the immigration law is "succinct and straightforward."). See also discussion infra Part III.B., which expounds upon this criticism. 118 Padilla, 130 S. Ct. at 1481. 119 Strickland v. Washington, 466 U.S. 668, 689 (1984). 120 Id. at 688. 121 Id. at 694. 122 Padilla, 130 S. Ct. at 1482. 123 Id. 124 Id. at 1484. 125 Padilla, 130 S. Ct. at 1486. 126 Id. at 1482 (the second prong determines if but for the attorney's "unprofessional errors, the result of the proceeding would have been different." (quoting Strickland, 466 U.S. at 694)).

71 B. Concurring with Objections: Let's Be Reasonable Justice Alito and Chief Justice Roberts concurred in the judgment that a criminal defense attorney has provided ineffective assistance of counsel when he misadvises a noncitizen client about the deportation consequences of a criminal plea.127 However, Alito asserted that the majority should have held that the Constitution only requires criminal defense attorneys to avoid offering unreasonably inaccurate counsel, and to inform their noncitizen clients that a criminal plea may have removal consequences that an immigration attorney could address.128 Alito asserted that immigration law is a complex specialty field with which many criminal defense attorneys may not be familiar.129 Moreover, Alito stressed that the majority's creation of a dichotomous duty based on the "succinct and straightforward" language of immigration law, or lack thereof, will result in "much confusion and needless litigation."130 He pointed out that many of the provisions and terms in immigration law are not defined and do not have a plain meaning.131 For example, Alito stated that the terms "conviction, moral turpitude, and single scheme of criminal conduct are terms of art," and do not have a plain meaning.132 He stressed that an immigration provision that appears to be "succinct and straightforward" on its face may in fact be quite complex or unclear.133 Alito further denoted the complexities of an offense that might not make a noncitizen removable, but instead excludable, thus demonstrating the need for an immigration specialist to address these issues.134 Alito pointed out that in eleven federal circuits and over thirty states, the majority's decision in Padilla overturned established precedent, which did not require a defense attorney to discuss the

127 128

Id. at 1487. Id. 129 Id. 130 Id. 131 Id. at 1488. 132 Id. 133 Id. 134 Id. at 1491 (explaining that a noncitizen may not be deportable for a specific offense, but that same offense may make him excludable and ineligible for readmission into the United States if he ever travels outside the country).

72 possible collateral consequences associated with a criminal plea.135 He stated that the majority should not have relied on the professional norms of the American Bar Association and other groups to establish a new constitutional duty to impose on criminal defense attorneys.136 Alito stated that it is the responsibility of the Court to determine what the Constitution requires.137 Moreover, he asserted that the professional organizations the majority used to justify its departure from longstanding precedent also stated that "'nothing is ever simple with immigration law,' including the determination [of] whether immigration law clearly makes a particular offense removable."138 Alito also emphasized that the majority's radical departure from precedent was demonstrated by its inability to cite even one case that ruled a noncitizen was entitled to deportation advice as a Sixth Amendment right to effective assistance of counsel.139 Moreover, Alito stated that the majority's reliance on Hill140 to conclude that defense counsel must provide affirmative advice was a non sequitur because in Hill, the Court expressly refused to address the defense counsel's incorrect advice.141 In addition, Alito averred that the Strickland142 two-prong test used to determine effective assistance of counsel applies to the range of competence demanded of attorneys in criminal cases.143 Alito reminded the majority that immigration law is not within "the range of competence demanded of attorneys in criminal cases," and a

135

Id. at 1487; see, e.g., United States v. Gonzalez, 202 F.3d 20, 28 (1st Cir. 2000) (noting that ineffective-assistance-of-counsel claim fails if based on an attorney's failure to advise a client of his plea's immigration consequences); United States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993) ([A]n attorney's failure to advise a client that deportation is a possible consequence of a guilty plea does not constitute ineffective assistance of counsel.); see generally Gabriel J. Chin & Richard W. Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 699 (2002) (noting that most jurisdictions, including eleven federal circuits, more than thirty states, and the District of Columbia have held that lawyers need not explain collateral consequences, including deportation). 136 Padilla, 130 S. Ct. at 1488. 137 Id. 138 Id. at 1490. 139 Id. at 1491. 140 Hill v. Lockhart, 474 U.S. 52 (1985). 141 Padilla, 130 S. Ct. at 1492. 142 Strickland v. Washington, 466 U.S. 668, 688 (1984). 143 Padilla, 130 S. Ct. at 1492 (quoting Strickland, 466 U.S. at 687 (emphasis added)).

73 constitutional demand requiring criminal defense attorneys to provide deportation advice is not a reasonable expectation.144 C. Dissent: Why Stop There; Collateral Consequences and the New Padilla Warning Justice Scalia, with whom Justice Thomas joined, dissented against the majority's ruling that the Sixth Amendment guarantees noncitizens the right to immigration advice associated with the risks of deportation resulting from a criminal plea, and imposes a duty on criminal defense attorneys to give advice in the complex area of immigration law.145 Scalia asserted that the Sixth Amendment guarantees a criminal defendant the right to counsel "for his defense" at all stages of the prosecution.146 However, Scalia declared that the Court has never required counsel to address the collateral consequences of a criminal plea or prosecution.147 He stated that deportation is but one of many serious collateral consequences associated with a criminal plea.148 For example, Scalia contended that the right to legal advice on the following types of collateral consequences resulting from a criminal plea could only be limited by judicial caprice: forfeiture of a professional or business license, disenfranchisement, and exclusion from public assistance, among others.149 Scalia also asserted that the majority was concerned that if Padilla was not properly informed, then his guilty plea could not be considered to have been given voluntarily.150 However, Scalia pointed out that any concerns over the voluntariness of a guilty plea are under the purview of the Fifth and Fourteenth Amendments,151 and a due process claim should not be "smuggled into the Sixth Amendment.152 Scalia asserted that the majority's new constitutional right to immigration advice would come to be known

144 145

Id. Padilla, 130 S. Ct. at 1494 (Scalia, J. dissenting). 146 Id. 147 Id. at 1495. 148 Id. 149 Id. at 1496. 150 Id. 151 U.S. CONST. amend V, XIV (no person may be deprived of life, liberty, or property, except by due process of law). 152 Padilla, 130 S. Ct. at 1494 (Scalia, J. dissenting).

74 as the Padilla warning,153 accompanied by ever-expanding categories of plea-invalidating misadvise . . . [,] not to mention innumerable evidentiary hearings . . . [,] to determine if the warning was really given.154 III. WRITERS ANALYSIS AND PROPOSAL A. Writer's Analysis Since 1889, the Supreme Court has routinely reminded Congress that it can do almost whatever it wants to aliens so long as Congress is statutorily clear about it.155 It was not until 1952 that the Court ruled in Kwong Hai Chew v. Colding156 that a LPR was entitled to procedural due process rights of notice and an administrative hearing when faced with deportability.157 It is current law that deportation proceedings are a civil matter.158 As such, Congress's ability to impose ex post facto laws against aliens has been rarely questioned by the Court.159 As the Court in Padilla recognized, a noncitizen who accepted a plea involving a removable offense after 1996 is for all practical purposes automatically removable.160 It should be noted that the removable offense of aggravated felony for immigration purposes does not have to be an aggravated offense or a felony offense under many state laws. For example, a theft offense with a term of imprisonment for at least one year qualifies as an aggravated felony under immigration law,161 while in Texas it is a misdemeanor offense.162 In response to the expanding categories of deportable offenses with most remedies eliminated, the Court in Padilla departed from precedent by finding that deportation has a "unique nature" due to its
153 154

Id. Id. 155 Chae Chan Ping v. United States, 130 U.S. 581, 607 (1889); Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893); Wong Wing v. United States, 163 U.S. 228, 237 (1896). 156 Kwong Hai Chew v. Colding, 344 U.S. 590 (1952). 157 Id. 158 Padilla, 130 S. Ct. at 1481. 159 Harisiades v. Shaughnessy, 342 U.S. 580, 580 (1952). 160 Padilla, 130 S. Ct. at 1480. 161 Immigration and Nationality Act of 1952, 101(43)(G) (codified at 8 U.S.C. 1101(a)(43)(G) (2011)). 162 TEX. PENAL CODE 31.03(a),(b),(c),(e)(3) (West 2011).

75 "particularly severe penalty" that places it within the boundary of the Sixth Amendment.163 Specifically, criminal defense attorneys have an affirmative duty to offer effective assistance of competent counsel to a noncitizen client regarding adverse immigration consequences resulting from a criminal plea when the immigration law is clear.164 Otherwise, the criminal defense attorney has a duty to advise the noncitizen that the criminal plea may have adverse immigration consequences.165 The Court's reasoning demonstrates a desire to grant some possibility of relief to noncitizens facing imminent deportation resulting from a removable offense. The Court 166 established a Sixth Amendment right for the noncitizen, while simultaneously placing a legal duty on criminal defense attorneys.167 The concurring justices, with objections, assert that the majority has gone too far and that a criminal defense attorney should have to do no more than either refrain from misadvise or advise a noncitizen client to seek counsel from an immigration attorney.168 They assert that to expect criminal defense attorneys to do more would be unreasonable due to the complex nature of immigration law.169 However, when a noncitizen, like Padilla, has resided in the United States for decades, fought in the countrys wars, and faces removal to a country where he has no ties, that does not seem reasonable either. Moreover, as the Court recognized, many States already provide a warning from the bench that criminal proceedings may have adverse immigration consequences.170 Essentially, noncitizens in many jurisdictions are already receiving a warning similar to what the concurring justices preferred. The majority's decision to require the professionally trained attorney-at-law to research his paying client's potentially complex immigration circumstances is certainly more reasonable than placing that burden on a noncitizen who may be unfamiliar with the English language and less familiar with United States law. The noncitizen is depending upon his lawyer for effective assistance of competent counsel. If an attorney knows he is not competent in a particular area of the law, such as immigration, he simply does not have to accept
163 164

U.S. CONST. amend VI. Padilla, 130 S. Ct. at 1483. 165 Id. 166 U.S. CONST. amend VI. 167 Padilla, 130 S. Ct. at 148182. 168 Id. at 1487. 169 Id. at 1494. 170 Id. at 1486.

76 that case. But, after Padilla, if an attorney accepts a noncitizen's case involving a criminal charge, that attorney now has an affirmative duty to provide effective assistance of competent counsel, which now includes possible adverse immigration consequences associated with a criminal plea.171 The dissent asserted that a criminal defense attorney does not even have a duty to avoid affirmative misadvise regarding the removal consequences associated with a criminal plea.172 This assertion is based upon the reasoning that deportation is not a direct consequence associated with criminal proceedings. However, such reasoning fails to recognize that Congress has made deportation directly connected to criminal proceedings, and a guilty plea to a removable offense often makes removal inevitable.173 As the Court recognized, deportation is uniquely related to a criminal plea and is not outside the boundary of the Sixth Amendment.174 The majority's reasoning and holding promotes notions of "fairness" and "notice of consequences" more so than that of the concurring or dissenting opinions. The criminal defense attorney is being compensated to represent the noncitizen client. He is in a much better position with an education in the law to understand or at least inquire about the immigration consequences associated with a criminal plea much more so than most noncitizens. As mentioned above, the defense attorney is not required to accept any case he does not feel competent to handle, thereby vacating criticisms that the majority's ruling is somehow unreasonable because immigration law is sometimes complex. B. Writer's Proposal Congress has been impotent in its ability to pass meaningful immigration reform legislation that would address U.S. economic and security issues, as well as effectively protect the rights of all people, including those of undocumented immigrants. As of 2009, the United States had approximately 30 million immigrants, both documented and undocumented.175 Undocumented immigrants as of 2009 were
171 172

Id. Id. at 149495 (Scalia, J., dissenting). 173 Id. at 1481 (majority opinion). 174 Id. at 1482. 175 Michael Hoefer, Nancy Rytina, and Bryan C. Baker, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009,

77 estimated to be approximately 11 million.176 As of 2006, there were an estimated 12 million LPRs,177 with approximately 1 million immigrants gaining LPR status per year since 2007.178 In the absence of meaningful immigration reform for tens of millions of noncitizens, this proposal focuses primarily on the LPR's legal situation under current immigration law. Specifically, due to a LPRs vested due process rights that the Court has already found in Chew,179 this proposal recommends either the reinstatement of the JRAD provision as a relief to inevitable deportation for LPRs or the granting of substantive due process rights to LPRs. From 1917 to 1990, sentencing judges at the state and federal level had the authority to issue a JRAD that was binding on immigration authorities.180 The sentencing judge reviewed the facts of the case, not just the fact that there was a conviction, to determine if deportation was warranted.181 A sentencing judge is typically in a better position to review the overall circumstances, including adverse immigration consequences, on a case-by-case basis to determine what type of sentence would be most appropriate. Therefore, the JRAD provided an appropriate remedy that offered an equitable determination for when a noncitizen should or should not be deported. In addition, the Court in Padilla also recognized that prosecutors and defense attorneys can better promote the interests of justice through an "informed consideration" of the deportation risks associated with various pleas.182 The result would be to "craft a conviction and sentence" that would promote the interests of justice in each case.183 However, this does not imply that all LPRs would avoid deportation.
Office of Immigration Statistics, Policy Directorate, U.S. Department of Homeland Security, Jan. 2010, at 1. 176 Id. 177 Nancy Rytina, Estimates of the Legal Permanent Resident Population in 2006, Office of Immigration Statistics, Policy Directorate, U.S. Department of Homeland Security, Feb. 2008, at 4. 178 Randall Monger, Annual Flow Report: U.S Legal Permanent Residents, 2009, Office of Immigration Statistics, Policy Directorate, U.S. Department of Homeland Security, Apr. 2010, at 2. 179 Kwong Hai Chew v. Colding, 344 U.S. 590 (1952). 180 Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010). 181 Immigration Act of Feb. 5, 1917, 19(a), 39 Stat. 890 (codified in 8 U.S.C. 1227 (2008)). 182 Padilla, 130 S. Ct. at 1486. 183 Id.

78 For example, a LPR with few family ties in the U.S. who becomes involved in gang-related or violent crimes is in many cases an appropriate candidate for deportation. However, a LPR who has been in the U.S. for decades, has extensive family ties, a long work history, has possibly served in our wars, and is sentenced to probation for twelve months for shopliftingshould not be deported. Indeed, the latter type of cases do not realistically result in deportation, but rather a de facto banishment, or punishment for a crime, defined as an expulsion from a country, especially from the country of one's . . . longtime residence.184 And, even though the Court in Ting185 ruled that deportation was not a punishment for a crime, and therefore not banishment, in Padilla, the Court finally recognized that the deportation consequence for many is "the equivalent of banishment or exile."186 Because of the harsh punishment associated with deportation, the Second Circuit in Janvier v. United States187 and the Fifth Circuit in United States v. Castro188 held that the JRAD provision was a constitutional right protected by the Sixth Amendment.189 Therefore, the interests of fundamental fairness cannot be promoted when Congress defines immigration proceedings as a civil process so that deportation cannot be declared a punishment for a crime, thereby avoiding the requirement for substantive due process rights, when deportation is regularly employed to banish LPRs from their home and country for some of the most trivial offenses. This proposal asserts that if LPRs cannot be afforded substantive due process rights, the JRAD provision should be reinstated to promote the interests of fundamental fairness, without fear that a JRAD will "leave an unprotected spot in the Nation's armor."190 However, since the Court has already recognized in Chew that LPRs have vested procedural due process rights under the U.S. Constitution, it is asserted that those rights should be extended to include certain substantive due process rights.191 The Court in In re Gault found that juveniles had been denied substantive due process
184 185

BLACKS LAW DICTIONARY 595 (7th ed. 1999). Fong Yue Ting v. United States, 149 U.S. 698, 1029 (1893). 186 Padilla, 130 S. Ct. at 1486. 187 Janvier v. United States, 793 F.2d 449 (2d Cir. 1986). 188 United States v. Castro, 26 F.3d 557 (5th Cir. 1994). 189 Padilla, 130 S. Ct. at 1480. 190 Kwong Hai Chew v. Colding, 344 U.S. 590, 602 (1952) (noting that LPRs have vested procedural due process rights under the U.S. Constitution). 191 Id. at 60102.

79 rights even though juvenile delinquency proceedings are civil in nature.192 The Court found that juveniles in a delinquency proceeding, while typically facing much less severe penalties than LPRs in deportation proceedings, were entitled to the following substantive due process rights: (1) Written notice of the specific charge or factual allegations given . . . sufficiently in advance of the hearing to permit preparation. (2) Notification . . . of the . . . right to be represented by counsel retained by [juvenile or family], or if they are unable to afford counsel, that counsel will be appointed . . . . (3) Application of the constitutional privilege against selfincrimination. (4) Absent a valid confession, a determination of delinquency and an order of commitment based on sworn testimony subjected to the opportunity for cross-examination in accordance with constitutional requirements.193 To determine if due process requirements are being satisfied under a given administrative procedure, the Court in Mathews v. Eldridge194 considered the following three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.195

192

In re Gault, 387 U.S. 1, 8 (1967) (noting that juvenile was denied substantive due process rights and sentenced to a term of commitment until his 21st birthday). 193 Bilhms v. State, 491 S.W.2d 740, 742 (citing In re Gault, 387 U.S. 1 (1967)). 194 Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (explaining that the Court applied the three-prong test and determined that the respondent had not been denied due process rights when he was not granted an evidentiary hearing prior to termination of his Social Security disability benefit payments). 195 Id.

80 The first factor in the Mathews framework, when applied to a LPR in a deportation proceeding, makes it clear that a LPR's private interest affected by the official action could be his life if returned to a hostile country. Certainly, his liberty and property interests are affected, as he leaves behind his loved-ones and property.196 The second factor in the Mathews framework involves the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.197 Here, the immigration laws are completely indifferent to the erroneous deprivation of a LPR's life, liberty, or property as evidenced by the fact that a LPR is deportable with merely a plea and a sentence to twelve months probation for shoplifting, irrespective of whether the LPR has his criminal case on direct appeal.198 The last factor in the Mathews framework focuses on the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.199 Clearly, expanding substantive due process rights to LPRs, as the Court did in In re Gault, would greatly increase the burdens on the immigration authorities in a deportation proceeding.200 However, this proposal asserts that those burdens are justified in the absence of a JRAD provision, and when balanced by the LPRs potential loss of life, liberty, and property. IV. CONCLUSION Noncitizens in America today have few remedies at their disposal if they are faced with removable offenses, including even relatively minor offenses. It is immaterial for deportation purposes that a noncitizen may have legally lived in this country for decades and may have even served in this countrys wars. The Supreme Court's holding in Padilla201 provides noncitizens only with the most basic advice regarding the possible immigration consequences of a plea in a criminal proceeding. Hopefully, Padilla is just the
196 197

Id. Id. 198 Immigration and Nationality Act of 1952, 241(a)(2)(A)(iii), (codified at 8 U.S.C. 1227(a)(2)(A)(iii) (2008)). 199 Mathews, 424 U.S. at 335 (governments interest). 200 In re Gault, 387 U.S. 1, 58 (1967) (adequate notice, court-appointed attorney, protections against self-incrimination, and constitutional rights to cross-examine). 201 Id.

81 beginning of constitutionally protected substantive due process rights, so that noncitizens, and especially LPRs, will soon possess the necessary due process rights to protect their life, liberty, and property.