The Role of the U.S. Constitution and Immigrant's Rights: Removal of Remedies and the Admission of a...

8/2/2019 The Role of the U.S. Constitution and Immigrant's Rights: Removal of Remedies and the Admission of a Sixth Amendment Right to Counsel

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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.INTRODUCTIONA. 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 formsof relief for noncitizens.

1Today, a noncitizen is automatically

deportable for an aggravated felony conviction, as defined byCongress.

2However, the actual offense need not be aggravated, a

felony, or a conviction for immigration purposes. For example, aTexas misdemeanor theft charge with twelve months deferred

adjudication probation is an aggravated felony conviction forimmigration purposes.

3It 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 ofcompetent counsel to their noncitizen clients regarding the adverse

immigration consequences associated with a criminal plea.5

InPadilla, 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)).4Padilla, 130 S. Ct. 1473.

5Id. at 1486.


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assistance of competent counsel, which included affirmative adviceregarding 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 inPadilla 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 toeffective assistance of competent counsel.

7The Court determined

that professional organizations, such as the American BarAssociation, 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 clientregarding the immigration consequences associated with a criminal

plea.

9

The Padilla Court held that the Sixth Amendment10

requires

affirmative effective assistance of competent counsel regardingimmigration consequences resulting from a criminal disposition when

the law is "succinct and straightforward."11

The Court clarified thatboth misadvise and silence about immigration consequences would

establish constitutionally deficient assistance of counsel.12

As aresult, 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 clientthat adverse immigration consequences are a possibility.

13

Significantly, the Court further recommended that the defense

and prosecution make an informed consideration of the adverse

6Id.7Id. at 148182.8Id. at 1482.

9Id.

10

U.S.C

ONST. amend. VI (right of a person accused of a crime to have assistanceof counsel).

11Padilla, 130 S. Ct. at 1483.12

Id. at 1484.13

Id.


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immigration consequences during the plea bargaining process, inorder 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 AlienDeserves Some Advice

Part one of this article includes an introduction to the current

legal situation imposed upon noncitizens, defined by an ever-

expanding array of deportable offenses, with few forms of effective

relief from removal. It also includes the evolution of the noncitizensright to effective assistance of counsel. Prior toPadilla, a noncitizen

did not have a Sixth Amendment15 right to effective assistance ofcounsel associated with adverse immigration consequences resulting

from a criminal plea. However, afterPadilla, a criminal defenseattorney has a duty to warn a noncitizen client about the risks of

deportation that may result from alternative dispositions in a criminalcase.

16

Part two presents a historical overview of the development ofimmigration law in America and an accused person's right to

assistance of counsel in a criminal proceeding. As the overviewindicates, 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.

18This

reveals the noncitizen's critical dependence upon competent legaladvice in a criminal plea.

19However, the overview also discusses

that a criminal defendant, whether citizen or noncitizen, was not

entitled to effective assistance of competent counsel in all criminalcases, as a Sixth Amendment

20right, until 1963.

21Nevertheless, for

the noncitizen, effective assistance to competent counsel did not

include advice regarding adverse immigration consequences

14Id. at 1486.15

U.S.CONST. amend. VI.16

Padilla, 130 S. Ct. 1473.17

Id. at 1479.18Id. at 1480.19Id.20


Gideon v. Wainwright, 372 U.S. 335 (1963).


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associated with a criminal plea until 2010.22

Part two of this articleconcludes with an overview of the key facts relevant to the Court's

analysis inPadilla.23

Part three discusses the Court's reasoning in Padilla.24 Itexplains why the Court essentially created a constitutional right forthe noncitizen to receive effective assistance of competent counsel

regarding adverse immigration consequences resulting from acriminal plea.

25Part 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'sopinion discusses the importance and consequences of the Court's

holding. In addition, part four analyzes the facts and reasoningoffered inPadilla by the concurring justices, with objections, as well

as those of the dissent. The writer asserts that granting aconstitutional right for the noncitizen to receive effective assistance

of competent counsel regarding adverse immigration consequencesresulting 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 RecommendationAgainst 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. BACKGROUNDA. Colonial and State Governance over Immigration

Since the American colonies were founded, local authoritiesestablished and enforced immigration law.

27Such laws typically

22Padilla, 130 S. Ct. at 1486.

23Id.

24

Id.25Id. 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).


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sought to control the movement of citizens and non-citizens based onindigence, 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 specificjurisdictions, even though the United States borders were physicallyopen.

29It was not until the latter part of the 19th Century that

Congress passed its first statute controlling immigration into theUnited States.

30

B.Federal Supremacy over Immigration, an Issue ofSovereignty

In 1798, Congress passed a federal statute grantingdeportation authority to the President.

31The Alien Enemy Acts of

1798 granted the President authority to remove aliens, friendly andunfriendly, if their country of origin was at war with the United

States.32

However, the Alien Enemy Acts of 1798 were short-livedand expired two years later.

33In 1875, Congress passed its first

statute that excluded immigrants from the United States, specificallyprostitutes and noncitizen-felons, unless the felony was for a political

offense.

34

In 1889, the Supreme Court in Chae Chan Ping v. UnitedStates35 affirmed that Congress has a sovereign right "to exclude

foreigners from the country whenever, in its judgment, the publicinterests require such exclusion."

36In 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 anddeportability are determined by either a treaty made by the President

28Id. at 1567.29

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.33Id.34See 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.


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and Senate or by statutes enacted by Congress.40

In addition, theCourt 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) hadto 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 WongWing 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 thereafterdeported), the noncitizen must be afforded constitutional due process

rights, like every other criminal defendant.44 The Supreme Court inWing re-affirmed that, "no limits can be put by the courts upon the

power of Congress to protect . . . the country from the advent ofaliens whose race or habits render them undesirable as citizens, or to

expel such."45

In 1907, Congress also added admissions to crimes ofmoral turpitude as an excludable criterion.

46In 1917, Congress

passed the first federal statute that made a noncitizen deportable if hecommitted a crime of moral turpitude in the United States within five

years after his entry, if the sentence was for at least one-yearimprisonment.47

In addition, the 1917 Act made a noncitizen

deportable if at any time after entry he committed at least two crimesinvolving moral turpitude.

48Congress defined a crime involving

moral turpitude to include inter alia a misdemeanor theft offense witha sentence of at least one year, including cases of deferred

adjudication probation.49

40Ting, 149 U.S. at 705.

41Id. at 714.

42Id.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))).48Id.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)).


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C. The Admission and Removal of Judicial and OtherRemedies

A significant procedural provision in the Act of 191750

wasthe admission into the immigration law of a JRAD.

51If the

sentencing judge in a criminal prosecution issued a JRAD, it wasbinding 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 passedthe Immigration and Nationality Act ("INA"), which removed the

JRAD provision from the immigration law for narcotics offenses.54Also in 1952, the Court in Harisiades v. Shaughnessy,

55re-affirmed

that immigration proceedings, such as deportation, are a civilprocedure, not criminal, and are not subject to federal constitutional

ex post facto prohibitions.56

In Galvan v. Press, the Court re-affirmed that deportation may be "drastic" and burdensome, but it is

not punishment.57

Consequently, the Court has repeatedly held thatfederal constitutional ex post facto prohibitions do not apply to

immigration law.

58

However, the Court did recognize in Kwong HaiChew v. Colding59 that a LPR was entitled to procedural due process

rights, including notice and an administrative hearing when facingdeportation.

60

In 1990, Congress amended the INA and completely removedthe JRAD provision from immigration law.

61In 1996, Congress also

removed the Attorney General's discretionary relief from deportation

50Padilla, 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))).51Id.

52Id.

53Id. at 1480.

54Id.

55Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952).

56Id.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).60Id.61

Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (citing Immigration and

Nationality Act of 1952, 8 U.S.C. 1251 (repealed 1990)).


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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 suchrelief.

64Currently, 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 ofcounsel before entering a plea to a criminal conviction.

65

D. The Evolving Standard for the Right to CounselIt appears that almost all of the original thirteen colonies in

America rejected the English common law practice of allowingdefendants 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, ofteninvolving capital punishment where counsel was sometimes provided

by the state.67

In 1791, the Sixth Amendment to the United StatesConstitution was ratified by the states and provided that "in all

[Federal] criminal prosecutions, the accused shall enjoy theright . . . to have the assistance of counsel for his defense."68

However, it was not until the 1930s that the United StatesSupreme Court began to recognize the Sixth Amendment provision as

an absolute right to counsel in some criminal offenses, regardless ofthe accuseds circumstances or his ability to hire an attorney.

69For

example, the Court ruled inPowell v. Alabama that:

[I]n a capital case, where the defendant is unable to

employ counsel, and is incapable adequately ofmaking his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the

court, whether requested or not, to assign counsel for

62Id. (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).67Id. at 64.68


Powell, 287 U.S. at 65.


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him as a necessary requisite of due process of law; andthat 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 ofthe 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) theCourt had construed the Sixth Amendment to require federal courts to

provide counsel for defendants unable to employ counsel unless theright was competently and intelligently waived, (3) the Court looked

to the fundamental nature of the Bill of Rights guarantees to decidewhether the Fourteenth Amendment made them obligatory on the

States, and (4) the Sixth Amendment's guarantee of counsel is one ofthe fundamental and essential rights made obligatory upon the States

by the Fourteenth Amendment.73

In 1970, the Court in McMann v. Richardson

74held that a

criminal defendant was entitled, not only to assistance of counsel, butalso to the effective assistance of competent counsel.75

In addition,

the Court held that a guilty plea cannot be attacked as based oninadequate legal advice unless counsel was not a reasonably

competent attorney and the advice was [not] within the range ofcompetence demanded of attorneys in criminal cases.

76

In 1984, the Court in Strickland created a two-prong test todetermine 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 objectivestandard of reasonableness under prevailing professional norms.

78If

so, the second prong determines whether, but-for the attorney's

"unprofessional errors, the result of the proceeding would have been

70Id.71 Gideon v. Wainwright, 372 U.S. 335 (1963).72

Id.73

Id.74

McMann v. Richardson, 397 U.S. 759, 771 (1970).75Id.76Id. at 77071.77

Strickland v. Washington, 466 U.S. 668, 688 (1984).78

Id.


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different."79

The Strickland standard for effective assistance ofcompetent 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,

80the Court had an

opportunity to apply the Stricklandtest to a case where the defendant

claimed his counsel was ineffective for providing misinformationregarding his parole eligibility.

81The 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 collateralconsequence (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 notapplicable.85

However, for the first time in Padilla, the Court

recognized that deportation is unique in its nature, even though notspecifically a criminal punishment.

86The Court acknowledged that

deportation is a "particularly severe penalty" that many noncitizenswould consider more important than a "potential jail sentence."

87

Since Congress has continued to expand the array of deportableoffenses, while simultaneously removing most forms of relief, the

Court inPadilla 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 thePadilla case.

79Id.

80 Hill v. Lockhart, 474 U.S. 52 (1985).81Id. 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.


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F. Padilla: Just the FactsJose Padilla, a native of Honduras, had been a lawful

permanent resident of the United States for more than forty yearseven though he had not obtained American citizenship.

89Padilla

possessed a valid Nevada drivers license, a valid social security

number, and served with honor as a member of the U.S. ArmedForces during the Vietnam War.

90Padilla 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-trailerwithout a weight and distance tax number.

91

Padilla, represented by counsel, moved to enter a guilty pleato the three drug-related charges in exchange for dismissal of the

remaining charge, constituting a total sentence of ten years on allcharges.

92The plea agreement provided specifically that Padilla

would serve five years of incarceration and the remaining five yearson probation.

93However, after sentencing, Padilla was notified by

U.S. Immigration and Customs Enforcement ("ICE") that deportationproceedings had commenced because of his guilty plea to drug-

distribution charges.

94

In post-conviction proceedings, he claimedthat his counsel not only failed to advise him of this clear

consequence before he entered the plea, but also told him specificallynot to worry about deportation since he had lived in this country so

long.95

Padilla relied on his counsel's erroneous advice when hepled guilty to the drug charges that made his deportation virtually

mandatory.96

He alleged that he would have insisted on going to trialif 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

89Commonwealth v. Padilla, 253 S.W.3d 482, 484 (Ky. 2008), cert. granted, 129 S.

Ct. 1317 (2009).90

Id. at 483.91Id.92Id.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.


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attorney was ineffective in advising him about the potential fordeportation as a consequence of his guilty plea.

99The 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 consequenceof a plea.

100Padilla 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 deniedPadillas 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 reversedand remanded the case.

105In Padilla, the Court examined the Sixth

Amendment's requirement for effective assistance of competentcounsel owed to noncitizens regarding the immigration consequences

resulting from a criminal plea, and by what standard to establishconstitutional deficiency.

106

II. THE COURTS ANALYSISA. The Supreme Court's Reasoning: With Remedies Removed,

Constitutional Rights Imported

Upon granting certiorari to petitioner Jose Padilla, theSupreme Court addressed the following two issues: (1) whether

Padilla's counselor engaged in unconstitutional conduct by failing toinform 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 noncitizensthat may face removal as a result of a criminal plea.

107The Court

held that Padilla's counselor did engage in unconstitutional conduct

99Id.

100Id.101Id.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.


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by failing to inform Padilla that a guilty plea to a criminal chargewould 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 removalbecause 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 deportablecrimes 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 entitledto the effective assistance of competent counsel.

110The Court in

Padilla acknowledged that deportation is not a criminal sanction andthat deportation is actually a civil proceeding.

111However, the Court

reasoned that because Congress, for almost one hundred years, has soensnared deportation with criminal sentences, deportation counsel

should not be denied entry into the Sixth Amendment right tocounsel.

112

The Court rejected the Supreme Court of Kentucky's findingthat Padilla's claim to ineffective assistance of counsel was

groundless since deportation was a collateral matter not within thescope of representation required by the Sixth Amendment.113

The

Court in Stricklandnoted that it had never made a distinction betweendirect 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 toimmigration advice involving the risk of deportation resulting from a

criminal plea.115

The Court ruled in Padilla that criminal defense attorneysnow have a constitutional duty to give correct advice as to anoncitizen client's risk of deportation when the immigration law at

issue is "succinct and straightforward."116

However, when the

108Id.109Id. at 1478.110

McMann v. Richardson, 397 U.S. 759, 759 (1970).111

Padilla, 130 S. Ct. at 1481.112

Id.113Id.114 Strickland v. Washington, 466 U.S. 668, 688 (1984).115

Padilla, 130 S. Ct. at 1486.116

Id. at 1483.


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immigration law at issue is not "succinct and straightforward," thecriminal 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 hisguilty plea based on ineffective assistance of counsel, the Courtapplied 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 ofreasonableness under prevailing professional norms.

120If so, the

second prong is to determine if but-for the attorney's "unprofessionalerrors, the result of the proceeding would have been different."

121

To determine reasonable professional norms, the Courtreviewed the standards of the American Bar Association and

numerous other legal authorities.122

The Court recognized that allsources agreed that a noncitizen criminal defendant should receive

competent advice regarding the risks of removal.123

In doing so, theCourt also rejected the Solicitor General's argument that Padilla's

claim to ineffective assistance of counsel should be limited toinaccurate advice offered by counsel.124

As a result, Justices Stevens,

Kennedy, Ginsburg, Breyer, and Sotomayor held that failure toprovide affirmative advice about a client's risk of deportation clearly

falls below the prevailing professional norms, and thus satisfies thefirst prong of the Strickland test.

125The Court did not address the

second prong ofStrickland.126

117Id. (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).120Id. at 688.121Id. at 694.122

Padilla, 130 S. Ct. at 1482.123

Id.124

Id. at 1484.125Padilla, 130 S. Ct. at 1486.126Id. 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)).


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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 ineffectiveassistance of counsel when he misadvises a noncitizen client aboutthe deportation consequences of a criminal plea.

127However, Alito

asserted that the majority should have held that the Constitution onlyrequires 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 befamiliar.

129Moreover, 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 theprovisions 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 thatan immigration provision that appears to be "succinct and

straightforward" on its face may in fact be quite complex orunclear.

133Alito further denoted the complexities of an offense that

might not make a noncitizen removable, but instead excludable, thusdemonstrating 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

127Id. at 1487.

128Id.129Id.130

Id.131

Id. at 1488.132

Id.133Id.134Id. 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).


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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.136Alito stated that it is the responsibility of the Court to determine whatthe Constitution requires.

137Moreover, he asserted that the

professional organizations the majority used to justify its departurefrom 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 departurefrom precedent was demonstrated by its inability to cite even one case

that ruled a noncitizen was entitled to deportation advice as a SixthAmendment right to effective assistance of counsel.

139Moreover,

Alito stated that the majority's reliance on Hill140

to conclude thatdefense counsel must provide affirmative advice was a non sequitur

because in Hill, the Court expressly refused to address the defensecounsel's incorrect advice.

141

In addition, Alito averred that the Strickland142

two-prong testused to determine effective assistance of counsel applies to the range

of competence demanded of attorneys in criminal cases.

143

Alitoreminded the majority that immigration law is not within "the range

of competence demanded of attorneys in criminal cases," and a

135Id. 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'sfailure 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 constituteineffective 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).136Padilla, 130 S. Ct. at 1488.137Id.138

Id. at 1490.139

Id. at 1491.140

Hill v. Lockhart, 474 U.S. 52 (1985).141Padilla, 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)).


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constitutional demand requiring criminal defense attorneys to providedeportation advice is not a reasonable expectation.

144

C. Dissent: Why Stop There; Collateral Consequences and the NewPadilla Warning

Justice Scalia, with whom Justice Thomas joined, dissentedagainst 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 ofimmigration law.

145

Scalia asserted that the Sixth Amendment guarantees acriminal defendant the right to counsel "for his defense" at all stages

of the prosecution.146

However, Scalia declared that the Court hasnever required counsel to address the collateral consequences of a

criminal plea or prosecution.147

He stated that deportation is but oneof many serious collateral consequences associated with a criminal

plea.148

For example, Scalia contended that the right to legal adviceon the following types of collateral consequences resulting from a

criminal plea could only be limited by judicial caprice: forfeiture of aprofessional 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 beconsidered to have been given voluntarily.

150However, Scalia

pointed out that any concerns over the voluntariness of a guilty pleaare 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 newconstitutional right to immigration advice would come to be known

144Id.

145Padilla, 130 S. Ct. at 1494 (Scalia, J. dissenting).146Id.147

Id. at 1495.148

Id.149

Id. at 1496.150Id.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).


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as the Padilla warning,153

accompanied by ever-expandingcategories of plea-invalidating misadvise . . . [,] not to mention

innumerable evidentiary hearings . . . [,] to determine if the warning

was really given.154

III.WRITERS ANALYSIS AND PROPOSALA. Writer's Analysis

Since 1889, the Supreme Court has routinely reminded

Congress that it can do almost whatever it wants to aliens so long asCongress is statutorily clear about it.

155It was not until 1952 that the

Court ruled inKwong Hai Chew v. Colding156 that a LPR was entitledto procedural due process rights of notice and an administrative

hearing when faced with deportability.157

It is current law thatdeportation proceedings are a civil matter.

158As such, Congress's

ability to impose ex post facto laws against aliens has been rarelyquestioned by the Court.

159As the Court in Padilla recognized, a

noncitizen who accepted a plea involving a removable offense after1996 is for all practical purposes automatically removable.

160It

should be noted that the removable offense of aggravated felony forimmigration purposes does not have to be an aggravated offense or a

felony offense under many state laws. For example, a theft offensewith a term of imprisonment for at least one year qualifies as an

aggravated felony under immigration law,161

while in Texas it is amisdemeanor offense.

162

In response to the expanding categories of deportable offenseswith most remedies eliminated, the Court in Padilla departed from

precedent by finding that deportation has a "unique nature" due to its

153Id.

154Id.

155Chae 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).160Padilla, 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).


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"particularly severe penalty" that places it within the boundary of theSixth Amendment.

163Specifically, criminal defense attorneys have

an affirmative duty to offer effective assistance of competent counsel

to a noncitizen client regarding adverse immigration consequencesresulting 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 immigrationconsequences.

165The Court's reasoning demonstrates a desire to

grant some possibility of relief to noncitizens facing imminent

deportation resulting from a removable offense. The Court

established a Sixth Amendment166

right for the noncitizen, whilesimultaneously placing a legal duty on criminal defense attorneys.

167

The concurring justices, with objections, assert that themajority has gone too far and that a criminal defense attorney should

have to do no more than either refrain from misadvise or advise anoncitizen client to seek counsel from an immigration attorney.

168

They assert that to expect criminal defense attorneys to do morewould be unreasonable due to the complex nature of immigration

law.169

However, when a noncitizen, like Padilla, has resided in theUnited States for decades, fought in the countrys wars, and faces

removal to a country where he has no ties, that does not seemreasonable either. Moreover, as the Court recognized, many States

already provide a warning from the bench that criminal proceedingsmay have adverse immigration consequences.

170Essentially,

noncitizens in many jurisdictions are already receiving a warningsimilar to what the concurring justices preferred.

The majority's decision to require the professionally trainedattorney-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 Englishlanguage and less familiar with United States law. The noncitizen isdepending upon his lawyer for effective assistance of competent

counsel. If an attorney knows he is not competent in a particular areaof the law, such as immigration, he simply does not have to accept

163 U.S.CONST. amend VI.164

Padilla, 130 S. Ct. at 1483.165

Id.166

U.S.C

ONST. amend VI.167Padilla, 130 S. Ct. at 148182.

168Id. at 1487.169

Id. at 1494.170

Id. at 1486.


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that case. But, afterPadilla, if an attorney accepts a noncitizen's caseinvolving 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 witha criminal plea.

171

The dissent asserted that a criminal defense attorney does not

even have a duty to avoid affirmative misadvise regarding theremoval consequences associated with a criminal plea.

172This

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 deportationdirectly connected to criminal proceedings, and a guilty plea to a

removable offense often makes removal inevitable.173 As the Courtrecognized, 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 theconcurring or dissenting opinions. The criminal defense attorney is

being compensated to represent the noncitizen client. He is in a muchbetter position with an education in the law to understand or at least

inquire about the immigration consequences associated with acriminal plea much more so than most noncitizens. As mentioned

above, the defense attorney is not required to accept any case he doesnot feel competent to handle, thereby vacating criticisms that the

majority's ruling is somehow unreasonable because immigration lawis sometimes complex.

B. Writer's ProposalCongress has been impotent in its ability to pass meaningful

immigration reform legislation that would address U.S. economic andsecurity issues, as well as effectively protect the rights of all people,

including those of undocumented immigrants. As of 2009, the UnitedStates had approximately 30 million immigrants, both documented

and undocumented.175

Undocumented immigrants as of 2009 were

171Id.

172

Id. at 149495 (Scalia, J., dissenting).173Id. at 1481 (majority opinion).174Id. at 1482.175

Michael Hoefer, Nancy Rytina, and Bryan C. Baker, Estimates of the

Unauthorized Immigrant Population Residing in the United States: January 2009,


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estimated to be approximately 11 million.176

As of 2006, there werean estimated 12 million LPRs,

177with 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 undercurrent immigration law. Specifically, due to a LPRs vested due

process rights that the Court has already found in Chew,179

thisproposal 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 federallevel had the authority to issue a JRAD that was binding on

immigration authorities.180 The sentencing judge reviewed the factsof the case, not just the fact that there was a conviction, to determine

if deportation was warranted.181

A sentencing judge is typically in abetter position to review the overall circumstances, including adverse

immigration consequences, on a case-by-case basis to determine whattype of sentence would be most appropriate. Therefore, the JRAD

provided an appropriate remedy that offered an equitabledetermination 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 ofjustice through an "informed consideration" of the deportation risks

associated with various pleas.182

The result would be to "craft aconviction and sentence" that would promote the interests of justice

in each case.183

However, this does not imply that all LPRs wouldavoid deportation.

Office of Immigration Statistics, Policy Directorate, U.S. Department of HomelandSecurity, 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.


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For example, a LPR with few family ties in the U.S. whobecomes 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 workhistory, has possibly served in our wars, and is sentenced to probationfor twelve months for shopliftingshould not be deported. Indeed,

the latter type of cases do not realistically result in deportation, butrather 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 notbanishment, in Padilla, the Court finally recognized that the

deportation consequence for many is "the equivalent of banishment orexile."

186Because of the harsh punishment associated with

deportation, the Second Circuit in Janvier v. United States187

and theFifth Circuit in United States v. Castro

188held that the JRAD

provision was a constitutional right protected by the SixthAmendment.

189

Therefore, the interests of fundamental fairness cannot bepromoted when Congress defines immigration proceedings as a civil

process so that deportation cannot be declared a punishment for acrime, thereby avoiding the requirement for substantive due process

rights, when deportation is regularly employed to banish LPRs fromtheir home and country for some of the most trivial offenses. This

proposal asserts that if LPRs cannot be afforded substantive dueprocess 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 toinclude certain substantive due process rights.

191The Court in In re

Gault found that juveniles had been denied substantive due process

184 BLACKS LAW DICTIONARY 595 (7th ed. 1999).185 Fong Yue Ting v. United States, 149 U.S. 698, 1029 (1893).186

Padilla, 130 S. Ct. at1486.187

Janvier v. United States, 793 F.2d 449 (2d Cir. 1986).188

United States v. Castro, 26 F.3d 557 (5th Cir. 1994).189Padilla, 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.


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rights even though juvenile delinquency proceedings are civil innature.

192

The Court found that juveniles in a delinquency proceeding,

while typically facing much less severe penalties than LPRs indeportation proceedings, were entitled to the following substantivedue 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 self-

incrimination. (4) Absent a valid confession, adetermination of delinquency and an order of

commitment based on sworn testimony subjected tothe opportunity for cross-examination in accordance

with constitutional requirements.193

To determine if due process requirements are being satisfiedunder a given administrative procedure, the Court in Mathews v.

Eldridge194 considered the following three factors:

(1) the private interest that will be affected by theofficial action; (2) the risk of an erroneous deprivation

of such interest through the procedures used, and theprobable value, if any, of additional or substitute

procedural safeguards; and (3) the Government's

interest, including the fiscal and administrativeburdens that the additional or substitute proceduralrequirement would entail.

195

192In 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 Courtapplied 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.


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The first factor in theMathews framework, when applied to aLPR 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 areaffected, as he leaves behind his loved-ones and property.

196

The second factor in theMathews framework involves the risk

of an erroneous deprivation of such interests through the proceduresused, 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 withmerely a plea and a sentence to twelve months probation for

shoplifting, irrespective of whether the LPR has his criminal case ondirect appeal.

198

The last factor in the Mathews framework focuses on thegovernment's interest, including the function involved and the fiscal

and administrative burdens that the additional or substitute proceduralrequirement would entail.

199Clearly, expanding substantive due

process rights to LPRs, as the Court did inIn re Gault, would greatlyincrease the burdens on the immigration authorities in a deportation

proceeding.

200

However, this proposal asserts that those burdens arejustified in the absence of a JRAD provision, and when balanced by

the LPRs potential loss of life, liberty, and property.

IV.CONCLUSIONNoncitizens 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 decadesand may have even served in this countrys wars. The SupremeCourt's holding inPadilla

201provides noncitizens only with the most

basic advice regarding the possible immigration consequences of aplea in a criminal proceeding. Hopefully, Padilla is just the

196Id.197

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)).199Mathews, 424 U.S. at 335 (governments interest).200In 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.


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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.

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