In a historic decision affecting the interplay of criminal and immigration law, the U.S. Supreme Court has ruled that criminal defense attorneys must advise noncitizen clients about the potential immigration consequences of accepting a guilty plea. Failure to do so, the Court held, constitutes a violation of the Sixth Amendment guarantee of effective counsel.
This type of violation can result in a defendant being eligible for "postconviction relief," such as modification of a criminal sentence or a new trial.
The ruling is the first case in which the Court has clearly applied Sixth Amendment protections in an immigration-law context.
In Padilla v. Kentucky, lawful permanent resident Jose Padilla, a Vietnam War veteran and a U.S. resident for 40 years, pled guilty to trafficking marijuana only after his defense attorney assured him that such a plea would not affect his immigration status.
Under current immigration law, however, drug trafficking is considered an aggravated felony, which renders a lawful permanent resident both deportable from the United States and ineligible for almost all forms of immigration relief, including cancellation of deportation.
The Supreme Court reversed an earlier decision by the Supreme Court of Kentucky, which had found that the Sixth Amendment does not protect criminal defendants from their attorneys' erroneous immigration advice because any immigration consequences that result from a guilty plea are merely "collateral" consequences of the criminal conviction, analogous to a convicted criminal losing his or her right to vote, or being barred from joining the military.
In rejecting the Kentucky court's reasoning, Justice John Paul Stevens, writing for the Court's majority, found that because the effects of a deportation are so severe, Padilla's deportation could not be classified as a mere "collateral" consequence (Justice Stevens announced his retirement shortly after issuing this decision).
While the Court did not rule on whether Padilla was entitled to postconviction relief, leaving this issue for the trial court to decide, a 7-2 majority found that the actions of Padilla's criminal defense attorney were "constitutionally deficient" in violation of the Sixth Amendment.
Justice Stevens' opinion, which four other justices signed, ruled that as a matter of federal law, deportation is now "an integral part — indeed, sometimes the most important part — of the penalty imposed on noncitizen defendants who plead guilty to specified crimes." Criminal defense attorneys are thus obligated to affirmatively advise their clients about the potential immigration consequences of guilty pleas.
In their concurring opinion, Justice Samuel Alito and Chief Justice John Roberts agreed with the majority that Padilla was entitled to Sixth Amendment protection. However, they would limit a lawyer's obligation under the Sixth Amendment to merely not providing erroneous advice. In their view, criminal defense attorneys must only advise noncitizen defendants of possible immigration consequences to their plea agreements, and that they should consult with immigration experts on these consequences.
Justices Antonin Scalia and Clarence Thomas dissented from the majority opinion, asserting that Padilla could not claim ineffective assistance of counsel, because his defense attorney was only obligated to advise him about the criminal, not immigration, consequences of pleading guilty.
In reaching his decision, Justice Stevens highlighted the fact that the "landscape" of immigration law has significantly changed in recent years. While certain criminal offenses have counted as grounds for deportability since 1917, recent changes to immigration law have increased the number of criminal offenses that can make a permanent resident deportable.
The number of crimes listed as aggravated felonies, for example, has increased from three crimes in 1988 (murder, drug trafficking, and firearms trafficking) to numerous crimes, including some federal and state misdemeanors, and several broad categories, such as "crimes of violence" and "theft offenses."
At the same time, recent laws have greatly restricted the ability of judges and immigration officials to cancel deportations of noncitizens who demonstrate strong ties to the United States, rehabilitation, or other meritorious claims.
Prior to 1990, the sentencing judge in a federal or state criminal case could issue a "judicial recommendation against deportation" (JRAD), a finding that ensured an immigrant defendant would not be deported based on a criminal conviction.
The Immigration Act of 1990 eliminated the JRAD procedure, and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) further curtailed the attorney general's ability to cancel deportations. IIRIRA also established that certain groups of permanent residents, including those who have committed aggravated felonies, are statutorily ineligible for cancellation of deportation and barred from almost all other forms of immigration relief.
As a result, Justice Stevens wrote, "The importance of accurate legal advice for noncitizens accused of crimes has never been more important." Stevens emphasized that the Court has long recognized that deportation is a "particularly severe penalty," and that permanent residents in deportation proceedings may have strong ties to the United States, such as family members who are lawful permanent residents or U.S. citizens.
Indeed, academic studies have noted that many lawful permanent residents facing deportation have resided in the United States for extended periods of time. A 2006 report by the Transactional Records Clearinghouse found that permanent residents charged with aggravated felonies between mid-1997 and mid-2006 had lived in the United States for an average of 15 years when their deportation proceedings began.
Whether the decision has retroactive application to those already deported is uncertain. There are no estimates as to the number of immigrants facing deportation who may be eligible to reopen their cases based on Padilla.
However, Justice Stevens rejected the idea that the Court's decision would "open the floodgates" to large numbers immigrants moving to reopen their criminal cases. This is because there are significant procedural hurdles to reopening criminal cases. In addition, prominent legal associations, including the American Bar Association (ABA) and the National Legal Aid and Defender Association, have been systematically educating criminal defense practitioners and judges on the importance of advising immigrant defendants about the potential immigration consequences of guilty pleas.
The ABA standards emphasize that defense attorneys should clearly explain the immigration consequences of particular pleas, because such consequences will frequently be of even greater importance to clients than court-imposed criminal penalties. Also, 28 states, as well as the District of Columbia and Puerto Rico, now require the courts to notify criminal defendants that guilty pleas and criminal convictions can affect their immigration status.
The Padilla decision comes just months after Attorney General Eric Holder, in another important immigration decision, reaffirmed the right to effective legal counsel in immigration proceedings.
Last June, Holder reversed the decision of his predecessor, Attorney General Michael B. Mukasey, in Matter of Compean, and reinstated the standards outlined in the 1988 case Matter of Lozada for individuals trying to reopen their immigration cases based on having been prejudiced by ineffective counsel (see the June 2009 Policy Beat for more on Matter of Compean). Holder also directed the Acting Director of the Executive Office of Immigration Review (EOIR) to initiate a final rule governing the use of ineffective counsel in motions to reopen. This is significant because the circuit courts are split on this question.
A controversial immigration enforcement bill designed to discourage unauthorized immigrants from residing in Arizona has passed both houses of the state legislature. Media reports have labeled the bill, SB 1070, as one of the toughest pieces of state immigration enforcement legislation in the country.
The version of the bill that passed the Arizona House of Representatives will move back to the Arizona State Senate for a final vote. Should the State Senate approve the bill, it will then go to Arizona Governor Jan Brewer, a Republican who assumed office when then-Governor Janet Napolitano became the head of the Department of Homeland Security. Brewer has not yet indicated whether she plans to sign the measure into law, but she is considered likely to do so because of political pressure.
Among its key provisions, SB 1070 would make it a state crime to be present in Arizona without legal immigration status, and would authorize state law enforcement agents to question individuals about their immigration status if an officer had a "reasonable suspicion" that they were unauthorized.
If an individual could not provide proof of legal status, the officer would then be authorized to arrest that person. The bill would require all immigrants to carry proof of their legal status, such as their alien registration card or other immigration document, at all times.
The bill would also make it a state crime to transport, conceal, or "harbor" any individual known to be an unauthorized immigrant. In addition, the bill prohibits state and local officials and agencies from restricting the enforcement of federal immigration law.
Critics, including many immigrant rights and civil liberties groups, say the new bill will lead to racial profiling and could discourage immigrants from cooperating with law enforcement, even when they have been the victims of crimes.
Proponents say the measure will lead to fewer unauthorized immigrants residing in Arizona, an issue that resonates with local constituents who are frustrated by the federal government’s inability to curb illegal immigration into the state.
In recent years, Arizona legislators have passed a number of strict immigration enforcement measures. In January 2008, Arizona became the first state to require all state employers to enroll in the federal E-Verify system, which enables employers to check whether new employees are authorized to work. In 2009, Arizona implemented a law barring unauthorized immigrants from obtaining almost all public benefits.
Bipartisan Immigration Bill. Months after they announced they were working to introduce a bipartisan immigration reform bill, Senators Lindsey Graham (R-SC) and Charles Schumer (D-NY) outlined a "framework" in a Washington Post editorial published just before a March 21 rally in Washington for immigration reform. Measures in the framework include requiring all U.S. citizens and legal immigrants to obtain new "tamper proof" Social Security cards with biometric indicators; increasing staffing and funding for U.S. Customs and Border Protection (CBP); implementing a temporary worker program; and a legalization program for unauthorized immigrants. Most policy experts and many immigrant advocates agree that the prospects for passing comprehensive immigration reform in 2010 remain at best uncertain.
H-1B Applications. U.S. Citizenship and Immigration Services (USCIS) received approximately 13,500 H-1B visa petitions as of April 8, a week after it began accepting applications for fiscal year (FY) 2011, providing evidence that employer demand for foreign high-skilled labor remains weak. USCIS did not meet the FY 2010 H-1B visa cap of 65,000 until December 2009, eight months after the application process opened. The H-1B visa program allows employers to petition for high-skilled foreign nationals, who enter the United States for up to six years. In past years, USCIS has met the congressionally mandated cap a few days after April 1, when it begins accepting applications.
Virtual Fence Funding. DHS has pulled $50 million in funding that was intended for the Southwest border's virtual fence of cameras, ground sensors, and radar, and has frozen additional funding for the project, known as SBInet. Homeland Security Secretary Janet Napolitano announced these changes the day before the Government Accountability Office (GAO) issued a new report that found that SBInet had not been adequately managed, was subject to several key defects, and would not be finished according to schedule. In January 2010, Homeland Security Secretary Janet Napolitano ordered a department-wide review of SBInet.
OIG Report on 287(g). Immigration and Customs Enforcement (ICE) does not provide comprehensive training to officers participating in its 287(g) immigration enforcement program and does not adequately supervise the program, according to a report from the Department of Homeland Security's Office of the Inspector General (OIG). The OIG report also noted that ICE has not developed measures to ensure that the 287(g) program targets unauthorized immigrants who pose a threat to public safety. The new report's criticisms mirror many of the critiques offered by GAO in its January 2009 report. Immigrant advocates and policy groups have also issued reports noting similar concerns about 287(g). Proponents of the program say it provides a valuable "force multiplier" for ICE while critics say the program has led to racial profiling.
New CBP Commissioner. President Barack Obama has appointed Alan Bersin as Commissioner of CBP, the agency within DHS that is responsible for protecting the country’s borders at all ports of entry and facilitating travel and trade. Bersin, previously assistant secretary for international affairs and special representative for border affairs at DHS, was appointed during a congressional recess. His predecessor, W. Ralph Basham, left the agency in February 2009.
Changes to E-Verify. Homeland Security Secretary Janet Napolitano said her agency will implement a number of reforms to the federal E-Verify program, which allows U.S. employers to check whether new employees are authorized to work. DHS will handle complaints about E-Verify misuse and employer discrimination through a new process and will establish a telephone hotline to respond to employee questions about the program. DHS is also introducing training videos for employers using E-Verify, in hopes of better explaining how to use the program. The agency believes the reforms will improve the program’s efficiency.
Immigration Benefits for Chilean Nationals. The United States may grant temporary immigration relief to Chileans residing in the United States due to the 8.8 magnitude earthquake that struck Chile in February. The measures, which include extending parole status or nonimmigrant status for Chileans in the United States, are similar to some of the relief measures that USCIS instituted for Haitian nationals following the Haitian earthquake in January. However, USCIS has not designated Chile for Temporary Protected Status. There were about 92,000 Chilean foreign born in the United States in 2008 according to the U.S. Census Bureau's American Community Survey.
Greece in U.S. Visa Waiver Program. Nationals of Greece are now able to travel to the United States for up to 90 days without needing a U.S. visa, thanks to Greece's inclusion in the U.S. Visa Waiver Program (VWP). Nationals of VWP countries may enter the U.S. visa-free if they are coming for business or tourism purposes and if they register with Customs and Border Protection's Electronic System for Travel Authorization (ESTA), which screens prospective travelers against terrorism and security watch lists. Greece is the 36th country to be admitted to the program.
Immigrant Assistance from Department of Labor. Labor Secretary Hilda Solis said her department will sign off on "U visa" certification forms for immigrants who have been the victims of certain crimes in the workplace, such as sexual assault or forced labor. The U visa, which Congress created in 2000, allows immigrants who have been victims of certain crimes and who have cooperated in a law enforcement investigation to apply for four years of temporary legal status and work authorization. In a related development, Solis announced a new DOL campaign aimed at encouraging all workers, regardless of their legal status, to report workplace violations, such as being paid less than minimum wage.
Farmers Branch Rental Ordinance. For the third time, a federal judge has struck down an ordinance in Farmers Branch, Texas, that would prohibit landlords from renting housing to unauthorized immigrants. Ordinance 2952, which the Farmers Branch City Council passed in January 2008, would have required all tenants in Farmers Branch to obtain a rental license from the city. As part of the application process, city officials would have verified whether each applicant was legally residing in the United States. In striking down the ordinance, U.S. District Court Judge Jane Boyle found that federal law preempts Ordinance 2952. According to press reports, Farmers Branch has already spent $3.2 million in legal fees fighting the lawsuits surrounding its rental-ban ordinances.
Lawsuit Over Marriage Licenses in Kent County, Michigan. Two unauthorized immigrants and their spouses in Kent County, Michigan, have filed a lawsuit alleging that the Kent County Clerk is violating their civil rights and the Constitution's equal protection clause by refusing to grant marriage licenses to unauthorized immigrants who do not have valid Social Security numbers. According to media reports, Kent County requires all applicants for marriage licenses to either list their Social Security numbers, or explain why they qualify for a legal or religious exception from the requirement. Neither exception covers unauthorized immigrants.