Padilla in Practice: Your Duty to Advise Clients of Immigration Consequences

Padilla in Practice: Your Duty to Advise Clients of Immigration Consequences September 7, 2010 Presented by Defending Immigrants Partnership for National Association of Criminal Defense Lawyers Trainers: Benita Jain and Manny Vargas, Immigrant Defense Project Dan Kesselbrenner, National Immigration Project of NLG Moderator: Vanessa Antoun, National Association of Criminal Defense Lawyers

Introduction 2

Agenda Summary of Padilla v. Kentucky Immigration Consequences of Criminal Dispositions: Overview and Key Concepts Meeting Padilla s Challenge: Defense Steps Examples Post-conviction relief Q&A Resources 3

Padilla v. Kentucky: Summary 4

Padilla v. Kentucky: The Facts Who was Jose Padilla? Lawful permanent resident for 40 years Vietnam War veteran Charged with marijuana possession and trafficking for having marijuana in his commercial truck Pled guilty for marijuana trafficking after defense attorney told him he did not have to worry about deportation because he had lived in US for so long 5

Padilla v. Kentucky: Lower Court Decision The Kentucky Supreme Court decided that deportation is a collateral consequence and therefore is outside the scope of the Sixth Amendment. Defense counsel s misadvice does not rise to the level of a Constitutional deprivation of right to counsel. 6

Padilla v. Kentucky: Supreme Court Response U.S. Supreme Court disagreed. The Court observed increasing harshness of immigration laws over past 90 years and concluded: Accurate legal advice for noncitizens accused of crimes has never been more important. The Court found that constitutionally competent counsel would have advised Mr. Padilla that his conviction for drug distribution made him subject to automatic deportation. 7

Padilla v. Kentucky: Supreme Court Holding Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. 8

Padilla v. Kentucky: Main Points 1 Deportation is a particularly severe penalty that is intimately related to the criminal process. Advice regarding deportation is not removed from the ambit of the Sixth Amendment right to effective assistance of counsel. 9

Padilla v. Kentucky: Main Point 2 Professional standards, such as ABA pleas of guilty standards and NLADA guidelines for defense lawyers, provide the guiding principles for what constitutes effective assistance of counsel. 10

Padilla v. Kentucky: Main Points 3 The Sixth Amendment requires affirmative, competent advice regarding immigration consequences. Non-advice (silence) is insufficient (ineffective). 11

Padilla v. Kentucky: Main Points 4 Informed consideration of immigration consequences by the defense and the prosecution during plea negotiations, in order to reduce likelihood of deportation and promote interests of justice, is appropriate. 12

Immigration Consequences of Criminal Dispositions: Overview & Key Concepts 13

[I]mmigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure of deportation or removal... is now virtually inevitable for a vast number of noncitizens convicted of crimes. Padilla v. Kentucky, 599 U.S., slip op. at * 2 (2010). 14

Immigration Consequences of Criminal Dispositions Deportation (sometimes mandatory) Detention during deportation case (sometimes mandatory) Bar to getting lawful immigration status (e.g. greencard, asylum, temporary protected status, student or work visas) Bar to citizenship (temporary or permanent) Bar to relief from deportation Bar to returning to U.S. after trip abroad or after deportation. 15

What offenses might have immigration consequences? Almost any offense may have an immigration consequence for some non-citizens. Individualized analysis is key! This includes, for example: Murder, rape, sex abuse Drug offenses (including marijuana possession) Theft, burglary, robbery, fraud, tax evasion Assault, domestic violence, OP violations Firearm offenses Bail jumping, perjury, bribery, forgery Prostitution, gambling Attempt, conspiracy and many others offenses! 16

What dispositions might have immigration consequences? Convictions (defined under immigration law) Vacated pleas/convictions (e.g. after rehab program) Violations or other dispositions that are not considered criminal by convicting jurisdiction Sometimes, even admissions to conduct, without a conviction, can have immigration consequences 17

Immigration Consequences of Criminal Dispositions: Key Concepts 18

Immigration Status Lawful Permanent Resident (LPR, green card) Refugee or asylee Undocumented folks Came without permission Visa overstay Ordered deported * not a complete list 19

Inadmissibility v. Deportability INADMISSIBILITY DEPORTABILITY INADMISSIBILITY Applies to noncitizens seeking lawful admission (or readmission) to the US Non-LPRs (including refugees, asylees, visitors, and undocumented) should focus on avoiding inadmissibility in order to adjust status to LPR or remain eligible for lawful status (and avoid deportation) LPRs traveling outside the US may also need to focus on inadmissibility in order to avoid being placed into deportation proceedings DEPORTABILITY Applies to noncitizens lawfully admitted into the US LPRs in the US should focus primarily on deportability 20

Exercise 1 Angela entered the U.S. by crossing the border without inspection. She is now living in New Orleans, is married to a U.S. citizen and wants to apply for a lawful permanent resident (LPR) green card. If you represent Angela in criminal proceedings, should you focus primarily on avoiding criminal inadmissibility or criminal deportability? 21

Exercise 1 Answer You should focus primarily on avoiding the criminal inadmissibility grounds. If Angela becomes inadmissible, she will not be able to adjust her status to an LPR unless she is eligible for a waiver and a waiver is granted. 22

Exercise 2 Bernardo is a lawful permanent resident living in Newark. He becomes inadmissible (but not deportable) for a criminal conviction. What effect does this have on his current status? Assume he has no plans to travel abroad. 23

Exercise 2 Answer Nothing. Since Bernardo is already a lawful permanent resident, he does not lose his current status unless he becomes deportable. Note: The conviction could affect his ability to naturalize (get citizenship) for up to 5 years. 24

Exercise 3 Bernardo (the lawful permanent resident from Atlanta) urgently wants to see his dying mother in Panama. What problem does his being inadmissible for a crime pose now? 25

Exercise 3 Answer If Bernardo leaves the US, he will be considered to be seeking admission upon his return. He will be refused admission and lose his status, unless a waiver is available and the government grants it. Thus, if this conviction cannot be avoided, a defender should warn Bernardo of the risk of travel outside the U.S. 26

Criminal Grounds of Removability A conviction can trigger deportability under more than one ground. Some grounds bar eligibility for relief from deportation; some do not. 27

Criminal Grounds of Inadmissibility see INA 212(a)(2) Controlled substance offense - conviction or admission Reason to believe drug trafficker Crime involving moral turpitude (CIMT) - conviction or admission - Petty offense exception: for 1 CIMT if maximum possible penalty does not exceed 1 year of imprisonment and actual penalty did not exceed 6 months of imprisonment - Juvenile exception: for 1 CIMT, committed while under 18, and committed/released >5 yrs before admission application Prostitution or commercialized vice 2 or more offenses + aggregate sentence 5 years or more 28

Criminal Grounds of Deportability see INA 237(a)(2) Controlled substance conviction Except simple possession 30 grams marijuana CIMT conviction 1 committed within 5 years of admission + potential sentence of 1 year or more 2 committed any time after admission and not arising out of a single scheme Firearm or destructive device conviction Crime of domestic violence or stalking conviction Child abuse, neglect, or abandonment conviction Violation of protection order - civil or criminal finding Aggravated felony conviction 29

Criminal Grounds of Deportability - Aggravated Felony In general, an aggravated felony is the most important ground for an LPR client to avoid Some reasons why: Deportation is a near certainty. Bars ability to maintain lawful permanent residency. Permanent ineligibility for citizenship. Triggers mandatory detention without bond. Permanently bars return to US after deportation. 30

Criminal Deportability Grounds Aggravated Felony, (cont.) A misdemeanor can be an aggravated felony. A crime need not be committed with aggravation to be an aggravated felony. 31

Criminal Deportability Grounds Aggravated Felony, (cont.) Specific aggravated felony offenses: Murder Rape Sexual abuse of a minor Drug trafficking (may include certain drug possession offenses) Firearm trafficking Crime of violence + 1 year sentence Theft or burglary + 1 year sentence Fraud, deceit or tax evasion with >$10,000 loss Commercial bribery, counterfeiting, forgery + 1 year sentence Attempt or conspiracy to commit any of above Other AF offenses at 8 USC 1101(a)(43). 32

Criminal Deportability Grounds Aggravated Felony, (cont.) Congress used varied criteria in defining aggravated felony offenses: conviction alone (e.g., murder) conviction + sentence (e.g., theft + sentence of a year or more) conviction + other characteristic (e.g., fraud + loss exceeds $10,000) 33

A Word About Moral Turpitude (deportability/inadmissibility) Statute does not define crime involving moral turpitude! Whether an offense involves moral turpitude depends on the elements of the offense, not the name of the offense. Caselaw defines CIMT as crime involving conduct that is inherently base, vile or depraved morally reprehensible malum in se 34

CIMT - Examples Crimes with intent to steal or to defraud Crimes in which bodily harm is caused or threatened by an intentional or willful act, or serious bodily harm is caused or threatened by a reckless act (e.g. murder, rape, and certain manslaughter and assault offenses) Most sex offenses Willful failure to register by a sex offender. Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007) Offenses requiring only negligence should not be moral turpitude! 35

What is a Conviction for Immigration Purposes? 36

Significance of Conviction Some grounds of removability are triggered only where there is a conviction. 37

Conviction Defined (8 USC 1101(a)(48)) 1. Formal judgment of guilt entered by a court; or 38

Conviction Defined (cont.) 2. If adjudication of guilt has been withheld, where: a. A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and b. The judge has ordered some form of punishment, penalty, or restraint on the alien s liberty to be imposed. 39

Consider: Drug Treatment or Family Counseling Diversion Pre-Trial Intervention Conditional Discharge Juvenile Disposition Appeal Post-Conviction Vacatur or Expungement 40

What is a Conviction? CONVICTION DEPORTABILITY Formal judgment INADMISSIBILITY of guilt in adult criminal court Diversion, drug treatment or family counseling if plea or admission of guilt Conditional discharge if plea or admission of guilt Conviction on collateral challenge Disposition vacated or expunged solely for rehabilitation or to avoid deportation. See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). NOT A CONVICTION Juvenile court disposition if analogous to FJDA Pre-trial intervention, diversion, drug treatment, family counseling if no plea or admission of guilt Conditional discharge if no plea or admission of guilt Conviction on direct appeal (Circuit split and BIA litigation) Disposition vacated based on legal defect in criminal case, including Padilla IAC. But see Renteria- Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002). 41

What is a Sentence for Immigration Purposes? 42

Significance of Sentence Some offenses are AF s only if a sentence of a year or more is imposed. (e.g. crime of violence, theft, receipt stolen property, forgery, bribery, counterfeiting, obstruction of justice, perjury, bribery) Some CIMT convictions cause inadmissibility or deportability depending on potential and/or imposed sentence. Some forms of relief are impacted by sentence. 43

Sentence Defined INA 101(a)(48(B) sentence... include[s] any period of incarceration or confinement ordered by a court regardless of suspension of imposition or execution. 44

Suspended Sentences, Probation Suspended sentence counts Full sentence counts as a sentence for immigration purposes. Probation alone does not count But note that, in some states, custody is ordered as a condition of probation and thus custody ordered counts as a suspended sentence for immigration purposes. Example: 3 yrs probation, 6 month custody as condition of probation = 6 month sentence. 45

Sentence Enhancements Recidivist sentence is a sentence for purposes of aggravated felony Substantive-based enhancement is a sentence 46

Avoid AF 1-year Sentence Get sentence to no more than 364 days Stack counts consecutively: Analysis goes count by count, Avoid any single offense with 1 year sentence Expand area of 364: waive past custody time served, waive future conduct credits Put time on non-af offense 47

Probation Violation Avoid total of original and new PV sentence over 364 days. New conviction instead of violation can avoid total sentence of one year on prior Modify original sentence to void the custody term and waive time served so new sentence is less than 365 Matter of Song, 23 I&N 173 (BIA 2001) 48

Relief from Deportation and Naturalization 49

Relief from Deportation Defense attorneys should also investigate and advise on eligibility for relief from deportation. 50

Relief from Deportation - Factors Relief from deportation can depend on a number of factors, including: Immigration status Time in US Family relationships Whether client is a DV survivor or has assisted law enforcement General equities Conviction and sentence can affect eligibility for relief. If a person is eligible, it can affect likelihood of being granted discretionary relief 51

Naturalization A conviction or admission can affect whether a lawful permanent resident is eligible for naturalization (citizenship). 52

Naturalization - Bars A conviction or admission of following crimes can bar naturalization for up to 5 years: Controlled substance offense (except single offense for 30g marijuana possession) CIMT (unless one CIMT + not punishable by >1 year jail + actual sentence is 6 months or less) 2 or more offenses with aggregate sentence of 5 years 2 gambling offenses Confinement to jail for 180 days 53

Meeting Padilla s Challenge: Defense Steps 54

Step 1 Investigate the Facts: Questionnaire Immigration status Criminal history? Immigration history Family ties -ABA Pleas of Guilty Standard 14-3.2(f), commentary at p. 127 55

Step 1: Tips Use the Noncitizen Defendant Worksheet a) Immigration Status is a bit complicated and a bit sensitive be aware of your client s potential reluctance to discuss it a) Immigration status + entry to U.S. + time in status b) LPR Lawful Permanent Resident (green card) c) Undocumented folks d) Refugee or asylee e) Current visa (what kind) or visa overstay (what kind) f) U.S. citizen? 56

Step 1: Tips b) You need ALL prior criminal convictions a) Includes felony, misdemeanor & municipal b) This includes diversion, deferred prosecutions & judgments, etc c) If statute is divisible you need the EXACT statutory citation of conviction d) Get details on any sentence to imprisonment, including any suspended sentence e) Find out length of probation, amount of restitution 57

Step 1: Tips c) Immigration history a) Date of entry into US, with what immigration status b) Prior deportations (i.e. removals) - Sometimes difficult to identify - Did your clients see an immigration judge - Did your client sign his removal with ICE - Did your client do something else (VD, vol. return) - Call the Immigration Court System (800) 898-7180 d) Family ties are critical to potential relief a) Family Relationship + Immigration Status = potential relief b) Spouse, common law, fiancé c) Children (ages) and parents 58

Step 2 Ascertain the Client s Wishes Does the client want to prioritize getting a good immigration result or a lesser criminal penalty? 59

Step 2: Tips a) The client goal spectrum a) Avoid consequences that trigger deportation b) Preserve eligibility to ask immigration judge to get or keep lawful immigration status c) Preserve eligibility to obtain future imm. benefit d) Get out of jail/custody ASAP e) Immigration consequences not a priority f) Desire to be deported as part of resolution 60

Step 3 Analyze the immigration impact of key defense decisions and advise the client Consider both avoiding deportability and maintaining eligibility for relief from removal This analysis determines whether the consequences of the plea are clear or unclear - Padilla slip opinion at * 13 61

Step 3: Tips a) investigation + crim history + goal = advisement a) Develop the expertise yourself or consult written charts and resources; or b) Get information to a criminal immigration expert; and c) Advise on both the clear and unclear consequences of the charge, the offer and any alternate plea dispositions that may be attainable in the case 62

Step 4 Defend the case according to the client s priorities If client states imm consequences are highest priority, conduct the defense with this in mind - Padilla slip opinion at * 16 63

Step 4: Tips a) If current offer fits client goals = take offer b) If offer doesn t fit client goals, then: a) Negotiate sentencing concession b) Negotiate plea offer to particular section of statute c) Make counter offer with sentencing concession d) Make counter offer pled to specific section of statute e) Litigate case towards motions hearing and trial f) Remember Padilla s instruction on prosecutor s duty 64

Example: A Tale of 2 Clients 65

A Tale of 2 Clients Maria and Bob are charged with marijuana possession and are considering pleading guilty to this charge. Step 1: You get the facts a. Maria: LPR + no priors + citizen spouse b. Bob: Undocumented + no priors + citizen spouse 66

A Tale of 2 Clients Step 2: You ascertain client s wishes Avoiding immigration consequences and deportation is a priority for each of them. Maria (LPR) wants to maintain her immigration status. Bob (undoc) wants to maintain his eligibility to get lawful immigration status. 67

A Tale of Clients Step 3: What is the Immigration Impact of a guilty plea to marijuana possession? a. Maria (LPR): MJ poss will make her deportable if >30g on record. If 30g or less, will affect ability to naturalize or travel. Relief depends on other facts. b. Bob (Undoc): He is already deportable - BUT MJ poss will bar ability to get legal status through his wife. Possibly eligible for waiver of bar if 30g or less (depending on family circumstances). 68

A Tale of 2 Clients Step 4: You defend according to client s priorities - Strategies a. Maria (LPR): To avoid deportability, avoid mj conviction, plead to 30g or less, or keep amount of mj out of record. Advise client. b. Bob (Undoc): He is already deportable. Avoid mj conviction to maintain eligibility to get status. If client decides must PG to mj, allocute to 30g or less to maintain eligibility for waiver. Avoid contact with ICE. Advise client. 69

Post-Conviction Relief Based on Ineffective Assistance of Counsel (Selected Issues) 70

Post-Conviction Relief Based on Ineffective Assistance of Counsel Deficient Performance Establishing Prejudice Post-Conviction Vehicles Impact on Immigration Case 71

Evaluation of Chances of PCR Evaluating a case see checklist of factors Requirements for success (1) Post-conviction vehicle (2) Ground of legal invalidity (3) Viable alternative plea or disposition (4) Equities 72

IAC Test In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court created a two-prong test to determine whether a person could vacate a conviction for ineffective assistance of counsel: 73

IAC Test II (1) Deficient Performance: The quality of the attorney s representation fell below professional norms; (2) Prejudice: The defendant suffered prejudice as a result of the deficient performance. Strickland 466 U.S at 687. Both prongs are required to win reversal. 74

Padilla s Holding (review) Accurate legal advice for noncitizens accused of crimes has never been more important. Immigration consequences are intertwined with criminal punishment and both are penalties that defense counsel must investigate and advise D about. 75

Padilla s Holding (review) (1) The Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a plea. (2) Absent such advice, a noncitizen may raise a claim of IAC. 76

Deficient Performance Immigration-Related IAC Claims: (1) Failure to Investigate and Advise (2) Affirmative Misadvice (3) Failure to Defend (4) Failure to Mitigate (classic IAC) 77

Failure to Investigate IAC for failure to investigate client s immigration status is a part of failure to advise concerning the immigration consequences of a plea. Every lawyer should ask every defendant their immigration status in every case. Signals that intensify this duty 78

Failure to Advise Previously only minority rule. Now Padilla holds failure to advise = IAC. See, e.g., U.S. v. Couto, 311 F.3d 179 (2d Cir. 2002) (open question whether failure to advise = IAC); U.S. v. Nino, 878 F.2d 101 (3d Cir. 1989) (reserving question whether failure to advise = IAC, denying claim on prejudice). 79

Affirmative Misadvice Padilla held affirmative misadvice = IAC This was previously the majority federal circuit rule. Arguably it was applicable throughout the states even before Padilla. 80

Failure to Defend Failure to try to secure immigration-safe disposition = IAC. This is implicit in Padilla. Padilla, supra, at 1486 (even counsel unskilled in immigration law can negotiate for an immigration-harmless disposition). This is also implicit in INS v. St. Cyr, 533 U.S. 289, 323 & n.50 (2001). It is not enough to tell Defendant, The axe is coming down on your neck. Counsel must try to stop the axe. 81

Failure to Defend II Janvier v. US, 793 F.2d 449 (2d Cir. 1986) (IAC for failure to move for JRAD at sentencing), cited with approval, Padilla, supra, 130 S.Ct. at 1480. 82

Failure to Mitigate Counsel always has duty to minimize sentence, and investigate mitigating facts Immigration disaster is a mitigating fact It can be used to (a) minimize sentence, and (b) minimize seriousness of offense Regardless of collateral consequences doctrine 83

IAC Failure to Mitigate II Sentence even one day shorter (e.g., 364 instead of 365 days) is sufficient to show prejudice from IAC at sentence. Glover v. United States, 531 U.S. 198 (2001). This IAC also works if safe haven plea has smaller maximum sentence than plea of conviction. 84

Prejudice D must prove there is a reasonable possibility, less than a preponderance, but enough to undermine confidence in the outcome, that a different outcome would have occurred absent the error. The basic test is whether D would have declined to enter the plea. Hill v. Lockhart, 474 U.S. 52 (1985). 85

Prejudice Tests D must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See Roe v. Flores- Ortega, 528 U.S. 470, 480 (2000), cited with approval in Padilla, supra, at 1485. 86

Prejudice Tests II Another formulation is that Defendant was deprived of the opportunity for a reasonable decision-maker to exercise discretion in her or his favor. United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005). This is the test used in Janvier, supra, when it held it reversible IAC to fail to move for JRAD, but no need to show the motion would have been granted. 87

Prejudice Tests III Strickland held prejudice does not depend on the idiosyncrasies of a particular decisionmaker; a rational decisionmaker is assumed. Strickland, supra, 466 U.S. at 694-695; accord, Hill v. Lockhart (1985) 474 U.S. 52, 59-60, 106 S.Ct. 366 ( these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker. ). 88

Types of Prejudice The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Hill v. Lockhart, supra, at 369. Prejudice requires vacating a conviction only if the error had [an] effect on the judgment. Id. 89

Types of Prejudice II An error can have an effect on the judgment in two major ways: (1) Reasonable possibility D would not have entered this plea, but would have taken the case to trial (Hill, supra, at 370); or (2) Reasonable possibility that D would not have entered this plea, but sought an alternative, immigration-safe plea. See People v. Bautista, 115 Cal.App.4th 229 (2004)(failure to plead to different nondeportable crime). 90

Prejudice After Trial Defendant can argue IAC in plea bargaining, even after trial, so all of the listed IAC claims apply. See Alvernaz v. Ratelle, 831 F.Supp. 790 (S.D.Cal. 1993). This might be shown if the immigration advice would have resulted in D successfully seeking an immigration-safe plea. 91

Proof of Prejudice All of the client s equities are circumstantial evidence that D would not have entered the disastrous plea if D had known the imm con. They also strengthen the argument that the prosecution and court would have helped. All weaknesses in the govt s case are evidence that D would have taken the case to trial, or litigated motions, etc., if the true scope of the immigration disaster had been known. 92

Proof of Prejudice II All of the efforts Defendant is going to now to try to get out of the disaster are circumstantial evidence that Defendant would have done so originally, if Defendant had only known the truth. The prosecution s claim that the plea bargain was so great that Defendant would never have foregone its benefits can be offset by the scope of the immigration harm. 93

General Immigration Warnings Roughly 30 states require the court taking a plea to advise D of the possibility of adverse immigration consequences. The prosecution may argue that the giving of this general advice (or an improper will cause deportation variation) insulates the plea against reversal for IAC. 94

General Immigration Warnings II This argument should be rejected: (1) D can and should rely on his counsel s advice, rather than the court s general warning given in ignorance of D s immigration status and other facts that directly impact immigration consequences. 95

General Immigration Warnings III (2) Padilla himself was given the general warning, on the Kentucky plea form. See Padilla, supra, at 1486 n.15. (3) The court s warning does not excuse counsel s errors, and many courts have reversed for immigration IAC despite the delivery of these warnings. E.g., People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987), and cases following it. 96

Procedural Issues (1)Procedural Vehicles (2)Date Claim Arose (3)Retroactivity (4)Statute of Limitations (5)Custody Requirement 97

Procedural Vehicles Procedural vehicles vary from jurisdiction to jurisdiction. See D. Wilkes, State Postconviction Remedies and Relief Handbook (2009)(state by state summary) Must make sure client qualifies for the vehicle you are using. 98

Federal Procedural Vehicles Motion to withdraw plea 28 U.S.C. 2255 motion to vacate (habeas) Coram nobis Direct appeal See generally Hertz & Liebman, Federal Habeas Corpus Practice and Procedure (5 th ed. 2001 & current supplement) 99

Date Claim Arose Padilla entered his plea in 1997; therefore Padilla s holding reflects 1997 standard of competence. Padilla established that the norm went back at least the past 15 years. Padilla,130 S.Ct. at 1485 (i.e., to 1995). Various arguments exist that the standard pre-existed 1997. 100

Date Claim Arose II 1980 ABA Standards requiring advice on collateral consequences of plea 1986 decision counsel s failure to seek non-deportable sentence = IAC. Janvier v. US, 793 F.2d 449 (2d Cir. 1986), cited with approval, Padilla, supra, 130 S.Ct. at 1480. 101

Retroactivity Padilla is not a new rule; it is an application of Strickland (1984) to a new context. It is therefore fully retroactive: If the rule... of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule.... Wright v. West, 505 U.S. 277, 308-309 (1992) (concurring), cited with approval in Yarborough v. Alvarado, 541 U.S. 652 (2004). 102

Retroactivity II In Williams v. Taylor, 529 U. S. 362, 390-91 (2000), the Supreme Court held that applying Strickland to particular scenarios does not establish a new rule of constitutional law. 103

Retroactivity III Padilla acknowledges its retroactivity, when it recognized it was merely construing Strickland. Padilla,130 S.Ct. at 1485 n.12. It dismissed potential floodgate concerns, an implicit acknowledgement of retroactivity. Padilla,130 S.Ct. at 1485. 104

Early Examples An early favorable retroactivity decision came down in New York. People v. Bennett, 28 Misc.3d 575, 903 N.Y.S.2d 696 (N.Y.City Crim.Ct.,2010). 105

Statute of Limitations Client could not have discovered Padilla claim before Padilla was decided 3/31/10 (but see specific claim). See 28 U.S.C. 2244(d)(1)(C) (arguably, Padilla started new oneyear AEDPA statute of limitations, which will expire on 3/31/11). 106

Custody Requirement Padilla says nothing about custody Federal habeas, and some state habeas, require custody (i.e., probation or parole) Immigration custody may not suffice. Compare Thorpe v. Head, 272 Ga 596, 597 (2002) (defining restraint very broadly for purposes of state post-conviction relief) with People v. Villa, 45 Cal.4th 1063, 1069-70 (2009) (denying remedy in immigration case for detainee who finished serving sentence). 107

Impact on Immigration Forum Effective orders vacating convictions must be based, at least in part, on claims of legal invalidity like IAC. Matter of Pickering, 23 I. & N. 621 (BIA 2003), rev d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). Immigration-related grounds of legal validity are sufficient to eliminate convictions. Matter of Adamiak, 23 I. & N. Dec. 878, 879-80 (BIA Feb. 8, 2006)(state imm. warning statute violation). 108

Rehabilitative Vacaturs Do not Work for Immigration Purposes Matter of Salazar-Regino, 23 I. & N. Dec. 223, 231 (BIA 2002); Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005). Ninth Circuit exception for first offense possession only, and similar minor drug offenses. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Cardenas- Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). 109

Your Turn: Question and Answer 110

Resources 111

Meeting Padilla s Challenge: Resources Defending Immigrants Partnership Practice Advisories: Duty of Defense Counsel Representing Immigrant Defendants After Padilla v. Kentucky (Includes list of national, regional, and local resources. Available at defendingimmigrants.org) Steps to Representing a Noncitizen Defendant Under Padilla v. Kentucky (Available at defendingimmigrants.org) Retroactive Applicability of Padilla v. Kentucky (Available at nationalimmigrationproject.org) 112

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Meeting Padilla s Challenge: Resources Consultation. Many ways to obtain expert consultation: in-house research attorney with mentorship, free expert consult or contract with non-profit or private experts. IDP s hotine 212-725-6422. PD office-wide models. See Protocol for the Development of a Public Defender Immigrant Service Plan at www.immigrantdefenseproject.org/webpag es/crimjustice.htm 114

We re just a call or click away! Defending Immigrants Partnership defendingimmigrants.org Immigrant Defense Project Phone: 212.725.6422 Email: info@immigrantdefenseproject.org Web: immigrantdefenseproject.org Immigrant Legal Resource Center Phone: 415.255.9499 Web: ilrc.org National Immigration Project of National Lawyers Guild Phone: 617.227.9727 Web: nationalimmigrationproject.org 115