ALERT — Defense counsel must advise defendants of immigration consequences.
On March 31, 2010 the U.S. Supreme Court issued its long-awaited decision in Padilla v. Kentucky. In short, the case held that a defense attorney is not effective under the 6th Amendment where he or she fails to advise their client whether a conviction will cause adverse immigration consequences. The decision casts new light on the meaning of the “collateral consequences doctrine, the notion that deportation proceedings are purely civil and raises questions about how much immigration advice defense counsel must provide clients. The case involved a long time Lawful Permanent Resident who plead guilty to an offense that guaranteed his deportation. Prior to entering the plea, Padilla’s lawyer told him that the plea would not affect his immigration status. For more information and analysis about this case, please see blog entires at the Supreme Court of Idaho, and U.S. Supreme Court blogs. Briefs are available at the U.S. Supreme Court WIKI.
*** The Andrade Law Office, Inc. is planning to hold a CLE on the implications of Padilla for defense counsel on June 4, 2010 in Boise. Date and location to be confirmed. ***
If you defend illegal re-entry cases, read this!
On March 8, 2010, a panel of the Ninth Circuit Court of Appeals definitively held that a an order reinstating a prior removal order that did not comply with due process cannot serve as independent basis for a criminal re-entry conviction under 18 U.S.C. sec. 1326.
“Today we express what we implied in Leon-Paz: A successful collateral attack reinstatment of removal order precludes reliance upon a reinstatment of that same order in criminal proceedings for illegal re-entry.” U.S. v. Arias-Ordoñez, Mar. 8, 2010.
DEFENSE ATTORNEY TIPS — DEFENDING NON-CITIZENS
Criminal convictions have direct and serious consequences for non-citizens. Conviction for a criminal offense may require a non-citizen’s removal (deportation), require that they be detained, make the person ineligible to legalize their status or ineligible for naturalization. Criminal-immigration law is a complex and changing area of law requiring full analysis on a case by case bases. Below, we provide some basic rules that will not insulate every non-citizen from adverse criminal immigration consequences, but may prevent defense counsel from making avoidable mistakes.
- If your client is a Lawful Permanent Resident and is convicted of an offense that is an “aggravated felony” under the Immigration and Nationality Act, the client must be removed (deported).
- Any non-citizen who is convicted of an “aggravated felony” must be detained during his immigration proceedings.
- A misdemeanor can be an “aggravated felony” for immigration purposes.
- A sentence of less than 1 year is always better for immigration purposes than a sentence of 1 year or more.
- A “sentence” for immigration purposes includes all suspended time.
- Sentences matter: For example, misdemeanor petty theft pursuant to I.C. § 18-2407(2) with a 1 year sentence or more is an “aggravated felony” for immigration purposes.
- A “withheld judgment” pursuant to I.C. § 19-2601 is a “conviction” for immigration purposes.
- UPDATE: There is no safe drug-related conviction. In general, the safest resolution of a pending first time marijuana charge is a convciton for possession of less than 30 grams of marijuana or possession of paraphernalia that relates to less than 30 grams of marijuana. CAUTION: The TYPE of substance (marijuana) and the AMOUNT of substance (less than 30 grams) must be clear from the charging document, judgement, plea agreement/jury instructions for this to work. The immigration court will not look at any other document than the documents listed above. This was amended in November of 2009.